I1  1 


BANCROFT 
LIBRARY 

^ 

THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


TREATISE 


CIYIL  AND  CRIMINAL  JURISDICTION 


OF 


JUSTICES  OF  THE  PEACE 


AND     DUTIKS    OF 


SHERIFFS  AND  CONSTABLES : 


ESPECIALLY   ADAPTED  TO   THE 


PACIFIC   STATES   AND   TERRITORIES 


CHARLES    W.    LANQDON, 

.A.YTO  K.  TV  IE  Y      A.T      I«JVW. 


SAN  FEANCISCO: 

PRINTED     BY    A.    L.    BANCROFT    AND  t!OMPANY, 
1870. 


La 


ENTEBED  according  to  Act  of  Congress,  in  the  year  of  our  Lord 

By  CHAELES  W.  LANGDON, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington 


SAN  FRANCISCO: 

FEINTED   AND   BOUND  BY  A.    L.    BANCBOFT  AND  COMPANY. 


/Iw  <£,, 


The  author  of  tbis  treatise  has  directed  his  labors,  in 
its  compilation,  with  special  reference  to  the  duties  and 
office  of  Justices  of  the  Peace  and  officers  attendant  upon 
the  Justice's  Court.  The  existence  of  this  Court  is  an  ad 
mitted  necessity,  and,  notwithstanding  its  jurisdiction  is 
limited,  it  embraces  a  large  portion  of  the  litigation,  both 
civil  and  criminal,  in  this  State.  In  its  organization,  the 
Legislature  has  not  authorized  a  departure  from  any  of  the 
known  rules  and  established  principles  in  legal  adjudica 
tions.  It  has  relaxed  the  strict  observance  of  particularity 
and  exactness  required  of  other  Courts,  but  not  to  the  ex 
tent  of  disregarding  the  long-established  rules  of  property 
and  the  value  of  an  acquaintance  with  them. 

It  is  not  enough  that  a  Justice  of  the  Peace  should  be 
impartial  and  sensible — that  he  should  be  honorable  and 
practical ;  all  this  is  useful  in  a  Justice,  but,  at  best,  is  as 
uncertain  as  may  be  the  causes  bearing  upon  his  friendships 
or  exciting  his  passions.  The  individual  notions  and  views 
of  right  and  wrong  entertained  by  men,  give  rise  to  litiga 
tion  ;  and  if  rules  and  principles  were  not  established,  by 
the  strict  observance  of  which  these  conflicts  may  be  set 
tled,  there  would  be  no  law,  and  the  might  of  power  would 
predominate.  Therefore  it  is  that  the  Legislature  has  de 
clared,  that  this  Court,  like  others,  shall  be  governed  by 


2  JUSTICES    TREATISE. 

rules,  and  has,  by  several  enactments,  marked  out  those 
rules  with  great  care  and  exactness. 

These  statutes  have  been  framed  in  the  light  of  the  opin 
ions  and  decisions  of  the  great  jurists  of  the  past  and  pres 
ent,  as  they  appear  in  the  books  containing,  them.  It  is 
obvious,  then,  that  upon  a  right  understanding  of  these 
laws,  and  the  rules  and  principles  they  invoke  in  the  deci 
sion  of  controversies,  the  security  of  property  within  their 
jurisdiction  mainly  depends. 

Errors  in  judgment  are  to  be  expected.  The  most  culti 
vated  intellects  cannot  claim  exemption  from  error.  Men 
who  have  industriously  devoted  their  lives  to  the  study  and 
practice  of  law,  admit,  at  the  end  of  their  labors,  that  they 
did  not  more  than  attain  a  point  from  which  they  could 
comprehend  their  ignorance.  How,  then,  can  it  be  expected 
of  our  best  men,  who,  at  the  solicitation  of  friends,  have 
been  induced  to  accept  its  responsibilities  without  having 
previously  studied  the  law,  can  adjudge  and  decree  cor 
rectly  ? 

It  is  not  pretended  that  this  book  will  supply  the  want 
of  a  legal  education.  It  is  only  the  result  of  an  endeavor  to 
assist  Justices  of  the  Peace  and  the  officers  of  their  Court 
— Sheriffs  and  Constables — in  the  discharge  of  their  useful 
and  laborious  duties. 

To  this  end,  it  contains  all  the  statutes  enacted  by  the 
Legislature  of  California,  up  to  the  adjournment  of  its  ses 
sion  in  1870,  having  relation  thereto,  and  the  decisions  of 
our  own  Supreme  Court  expounding  them,  as  well  as  many 
decisions  by  the  Courts  of  other  States  on  similar  statutes. 

Forms  of  processes,  orders  and  returns,  necessary  to 
carry  out  the  provisions  of  the  Practice  Act — civil  and  crim 
inal — have,  been  carefully  prepared,  and  will  be  found  in 
connection  with  the  subjects  requiring  them. 

The  author  respectfully  suggests,  that  lawyers  will  find 


PREFACE.  6 

it  useful  as  a  book  of  reference;  nor  can  he  persuade  him 
self  that  the  man  of  business  who  has  an  interest  in  the 
structure  and  mode  of  enforcing  contracts,  may  slightly 
regard  its  importance  to  him. 

The  author  acknowledges  his  great  obligations  for  the 
aid  he  derived  from  Mr.  Charles  H.  Parker's  excellent 
"Digest  of  California  Reports  and  Statutes."  The  author 
has  also  received  great  assistance  from  Mr.  Cowen's  valua 
ble  "Treatise  on  Justices."  Chitty  and  Parsons  on  Con 
tracts,  have  been  freely  consulted,  so  also  have  Greenleaf, 
Bouvier's  Institutes  and  Kent's  Commentaries.  This  book, 
however,  is  mainly  a  condensation  of  all  that  the  Supreme 
Court  of  this  State  has  pronounced  on  subjects  pertaining 
to  Justices  of  the  Peace.  Decisions  of  the  Supreme  Court 
of  Nevada  and  of  other  States  are  given  on  subjects  to 
which  they  are  pertinent. 

The  compiler  of  this  work  would  not  disregard  the  en 
couragement  he  has  received  from  Members  of  the  Bar  in 
Sonoma  County  ;  and  particularly  would  he  express  his 
grateful  recognition  of  the  zeal  and  industry  of  Henry 
Colter,  Esq.,  to  whose  unceasing  labors  he  is  indebted  for 
the  early  completion  of  this  work. 

C.  W.  LANGDON. 

SANTA  ROSA,  April  17th,  1870. 


Page  31,  section  34,  for  "  Has  a  justice,"  read  "  A  justice." 

Page  44,  section  29,  for  "proceeding,"  read  "preceding." 

Page  103,  section  24,  between  the  words  "  assignment  "  and  "  of  the  debt, " 

read  the  words  "  of  the  mortgage  without  the  assignment." 

Page  335,  section  116,  second  line,  for  the  words  "is  entitled,"  read  "is 

not  entitled." 


TA.BLE    OF    CONTENTS. 


PAET    FIBST. 


CHAPTEE  I. 

4 

JUSTICES  OF  THE  PEACE,  ELECTION  or,  ETC 1 

CHAPTER  II. 
JURISDICTION  OF  JUSTICES 22 

CHAPTEE  III. 
CONTRACTS,  IN  GENEEAL 36 

CHAPTEE  IV. 

CONTRACTS  PARTICULARIZED,  WHAT  CONSTITUTES 46 

CHAPTEE  V. 
CONTRACT  OF  ACCOUNT 78 

CHAPTEE  VI. 
CONTRACT  OF  AGENTS v 80 

CHAPTEE  VII. 
CONTRACT  OF  ASSIGNMENT 99 

CHAPTEE  VIII. 
CONTRACT  OF  BAILMENT 113 

CHAPTEE  IX. 
CONTRACT  PF  COMMON  CARRIERS 122 

CHAPTEE  X. 

CONTRACT  OF  CORPORATIONS 141 

CHAPTEE  XI. 
CONTRACT  OF  DEBT 144 

CHAPTEE  XII. 
CONTRACT  OF  FREIGHT 148 

CHAPTEE  XIII. 
CONTRACT  OF  HUSBAND  AND  WIFE 149 

CHAPTEE  XIV. 
CONTRACT  OF  MONET  HAD  AND  EECEITED  . . ,  .  162 


6-  JUSTICES'  TREATISE. 

Page. 
CHAPTER  XV. 

CONTRACT  OF  PARTNERSHIP 164 

CHAPTEE  XVI. 
CONTRACT  OF  SALK 178 

CHAPTEE  XVII. 

CONTRACT  OF  WAGES 183 

CHAPTEE  XVIII 
CONTRACT  OF  WORK  AND  LABOR 186 

CHAPTEE  XIX. 
ABATEMENT 194 

CHAPTEE  XX. 
AEANDONDMENT 196 

CHAPTEE  XXI. 
ACKNOWLEDGMENT  AND  FORMS  OF '. f  197 

CHAPTEE  XXII. 

ACTIONS  AGAINST  STEAMERS,  VESSELS,  ETC 202 

CHAPTEE  XXIII. 
ADJOURNMENT 209 

CHAPTEE  XXIV. 
AMENDMENTS 215 

CHAPTEE  XXV. 
APPEALS 218 

CHAPTEE  XXVI. 
APPEARANCE 231 

CHAPTEE  XXVII. 
ARREST 235 

CHAPTEE  XXVIII. 
ARGUMENT  OF  COUNSEL 247 

CHAPTEE  XXIX. 
ARBITRATION • 247 

.  CHAPTEE  XXX. 
ATTACHMENT 256 

CHAPTEE  XXXI. 
ATTORNEY  AT  LAW 295 

CHAPTEE  XXXII. 

BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES 297 

CHAPTEE  XXXIII. 
CALLING  OF  CAUSE.  . ,  .  354 


•  CONTENTS.  7 

Page. 
CHAPTEE  XXXIV. 

CERTIOBABI 355 

CHAPTEE  XXXV. 

CHATTEL  MOBTGAGE  . .  .  356 


CHAPTEE  XXXVI 

CLAIMS  AGAINST  ESTATES  OF  DECEASED  PERSONS.  . , 


CHAPTEE  XXXVII. 

CLAIMS  AND  DELIVEBY  or  PEBSONAL  PBOPEBTT.  . 


CHAPTEE  XXXVIII. 

CONTEMPTS  . . . 


CHAPTEE  XXXIX. 

COSTS.  . . 


CHAPTEE  XL. 
DAMAGES : 


CHAPTEE  XLI. 

DEPUTATION.  . , 


CHAPTEE  XLIL 

DEPOSITIONS.  . . 


CHAPTEE  XLIII. 

DISMISSAL  AND  DISCONTINUANCE  . . 


CHAPTEE  XLIV. 
DOCKET,  JUSTICE'S 1 : „          .  404 

CHAPTEE  XLV. 
ESTOPPEL r 410 

CHAPTEE  XLVI. 
ESTBATS. 416 

CHAPTEE  XLVII. 
EVIDENCB 429 

CHAPTEE  XLVIII. 
EXECUTION .  457 

CHAPTEE  XLIX. 
FENCES,  INJUBT  TO  PBOPEBTY 476 

CHAPTEE  L. 
FEBBIES  AND  TOLL  BBIDGES 481 

CHAPTEE  LI. 
FOBMEB  EECOTEBT 433 

CHAPTEE  UI. 
FBAUD : 455 

2 


8  JUSTICES'  TREATISE.  « 

Page. 

CHAPTER  Lilt 
INJUBY  BY  CONTUSION  or  GOODS 496 

CHAPTER  LIV. 
INJURY  TO  PERSON  OB  CHABACTEB,  MALICIOUS  PBOSECUTION 497 

CHAPTER  LV. 
INJUBY  TO  PEBSONAL  PBOPEBTY • ^97 

CHAPTER  LVI. 
INJUBY  TO  THE  PEBSON 500 

CHAPTER  LVII. 

CftC 

INSOLVENCY 

CHAPTER  LVni. 

ICTEBEST.  . 508 

CHAPTER  LIX. 
INSTBUCTIONS 511 

CHAPTER  LX. 
JUDGMENT 515 

CHAPTER  LXI. 
LANDLOBD  AND  TENANT 524 

CHAPTER  LXII. 
LIENS  OF  MECHANICS  AND  OTHEBS 532 

CHAPTER  LXIII. 
LIMITATION,  STATUTE  OF 545 

CHAPTER  LXIV. 
LIQUIDATED  DAMAGES r  •  550 

CHAPTER  LXV. 
MANNEB  OF  COMMENCING  ACTION 553 

CHAPTER  LXVI. 
MINES  AND  MINING  CLAIMS 557 

CHAPTER  LXVII. 
MOBTGAGE  PLEDGE 587 

CHAPTER  LXVIII. 
NEW  TBIAL 597 

CHAPTER  LXTX. 
NONSUIT 604 

CHAPTER  LXX. 
NUISANCE 606 

CHAPTER  LXXI. 
OFFICEBS...  .  609 


CONTENTS. 


OFFSET,  COUNTER-CLAIM  .  . 

CHAPTER  LXXIL 

Page* 
610 

PARTIES  TO  ACTIONS  

CHAPTER  LXXIII. 

.           615 

PARENT  AND  CHILD  

CHAPTEK  LXXIV. 

• 

624 

PAYMENT  

CHAPTEK  LXXV. 

627 

PERSONAL  LIABILITIES  OF 

CHAPTER  LXXVI. 
OFFICERS  

.  630 

PLEADINGS  

CHAPTER  LXXVII. 

< 
632 

KELEASE  .  . 

CHAPTER  LXXVIII. 

,.   650 

CHAPTER  LXXIX. 
SUMMONS f 651 

CHAPTER  LXXX. 
SUMMONS,  SEBYICE 655 

CHAPTER  LXXXI. 
SHERIFFS 666 

CHAPTER  LXXXII. 
STOPPAGE  IN  TRANSITU ? 707 

CHAPTER  LXXXIII. 
SUNDAYS 708 

CHAPTER  LXXXTV. 
SURETIES 709 

'CHAPTER  LXXXV. 
TENDER 710 

CHAPTER  LXXXVI. 
TIME 713 

CHAPTER  LXXXVH. 

TRANSFER  OF  ACTION.  .1 714 

CHAPTER  LXXXVIH. 
TRESPASS 717 

CHAPTER  LXXXIX. 
TRIAL 720 

CHAPTER  XC. 
THOVEB  AND  CONVERSION , .  733 


10  JUSTICES'  TBEATISE. 

Page. 
CIJAPTER  XCI. 

TBUSTS 734 

CHAPTER  XCII. 
UNDEBTAKTNG  ON  BONDS 735 

CHAPTER  XCIII. 
USE  AND  OCCUPATION ? 738 

CHAPTER  XCIV. 
VALUE 739 

CHAPTER  XCV. 
VAEIANCE 740 

CHAPTER  XCVI. 
WABBANTT 741 

CHAPTER  XCVIL 
WATEE  RIGHTS 743 

t              CHAPTER  XCVIII. 
WITNESS 754 

CHAPTER  XCIX. 
FEES...  756 


PAB.T    SECOND. 


CRIMINAL  PRACTICE [SEEPAGES  776  TO  829.] 


JUSTICES'    TREATISE. 


CHAPTER   I. 
JUSTICES  OF  THE  PEACE. 

Election,  Qualification  and  Term  of  Office. 

SECTION  1.  The  powers  of  the  government  of  the  state 
of  California  are  divided  by  the  constitution  into  three  sep 
arate  departments  :  the  legislative,  the  executive  and  judi 
cial.  Gen.  Laws,  112. 

SEC.  2.  The  judicial  power  is  vested  in  a  supreme  court, 
in  district  courts,  in  county  courts,  in  probate  courts  and  in 
justices  of  the  peace,  and  in  such  recorders'  and  other  infe 
rior  courts  as  the  legislature  may  establish  in  any  incorpo 
rated  city  or  town..  Gen.  Laws,  173. 

SEC.  3.  The  legislature  is  required  to  determine  the 
number  of  justices  of  the  peace  to  be  elected  in  each  city 
and  township  of  the  state.  Gen.  Laws,  181. 

SEC.  4.  In  accordance  with  the  requirements  of  the  con 
stitution,  the  legislature  has  provided  that  there  shall  be 
elected  for  each  township,  two  justices  of  the  peace,  except 
in  the  city  and  county  of  San  Francisco  there  shall  be  but 
one  justice  of  the  peace  for  each  township.  In  the  city  of 
Sacramento  there  shall  be  three  justices  of  the  peace  elect 
ed  ;  in  the  city  of  Marysville,  two  justices  of  the  peace ; 
and  for  the  city  of  Oakland,  one  justice  of  the  peace. 
Gen.  Laws,  4719. 

SEC.  5.  Justices  of  the  peace  shall  be  elected  by  the 
qualified  electors  of  their  respective  cities  or  townships. 
Gen.  Laws,  4720. 

SEC.  6.  Justices  of  the  peace,  recorders  and  other  infe- 
3 


18  JUSTICES'  TREATISE. 

rior  judicial  officers,  in  any  incorporated  city  or  town,  shall 
be  elected  by  the  qualified  electors  of  their  respective  town 
ships,  cities  or  towns,  at  the  special  judicial  elections,  and 
shall  hold  their  offices  as  provided  by  law  :  provided,  that 
nothing  in  this  section  shall  be  so  construed  as  to  apply  to 
the  mayor  of  any  city  who  shall  be  judge  of  a  municipal 
court.  Gen.  Laws,  4729. 

SEC.  7.  Justices  of  the  peace  shall  be  elected  by  the 
electors  of  their  respective  townships  or  cities,  at  the  spe 
cial  elections  to  be  held  for  the  election  of  justices  of  the 
supreme  court,  *and  shall  hold  their  offices  for  two  years 
from  the  first  day  of  January  next  following  their  election. 
Whenever  a  vacancy  shall  occur  in  the  office  of  a  justice,  by 
death,  resignation  or  otherwise,  it  shall  be  filled  by  appoint 
ment  by  the  board  of  supervisors  of  the  county.  The  per 
son  appointed  shall  hold  his  office  for  the  unexpired  term  of 
his  predecessor.  Gen.  Laws,  1284,  4757. 

SEC.  8.  "When  any  justice  of  the  peace,  by  the  formation 
of  a  new  township,  shall  be  brought  within  the  limits  there 
of,  he  shall  be  one  of  the  justices  of  the  peace  allowed  to 
such  new  township,  and  shall  continue  in  office  until  the 
expiration  of  the  term  for  which  he  was  elected.  Gen. 
Laws,  4730. 

SEC.  9.  When,  by  annexing  a  part  (A  one  township  to 
another,  there  shall  be  more  than  the  proper  number  of 
justices  of  the  peace  within  the  limits  of  the  township  to 
which  addition  shall  have  been  made,  any  justice  of  the 
peace  brought  within  such  township  shall,  notwithstanding, 
hold  and  exercise  his  office  therein  until  the  expiration  of 
his  term  of  office,  but  no  successor  shall  be  elected  after 
the  office  becomes  vacant,  either  by  the  expiration  of  the 
term  of  office  of  the  incumbent  or  otherwise  ;  and  whenever 
any  township,  in  consequence  of  any  part  of  it  being  taken 
to  form  a  new  township  or  to  be  annexed  to  any  other  town 
ship,  shall  be  deprived  of  its  proper  number  of  justices  of 
the  peace,  the  vacancy  thus  produced  shall  be  supplied  as 
in  other  cases.  Gen.  Laws,  4731. 

SEC.  10.  All  township  officers  elected  by  the  people  shall 
receive  certificates  of  election  from  the  officer  or  officers  to 
whom  returns  of  election  are  made.  Gen.  Laws,  4733. 


JUSTICES  OF  THE  PEACE,    ELECTION  OF,   ETC.  19 

SEC.  11.  Any  officer  elected  or  appointed  to  fill  a  vacancy 
shall  be  commissioned,  or  receive  a  certificate  of  election  or 
appointment,  to  such  office.  Gen.  Laws,  4734. 

SEC.  12.  All  commissions  of  officers  shall  be  in  the  name 
and  by  the  authority  of  the  people  of  the  state  of  Califor 
nia,  and  shall  be  sealed  with  the  great  seal  of  the  state, 
signed  by  the  governor  and  countersigned  by  the  secretary 
of  state.  Gen.  Laws,  4732. 

SEC.  13.  Proof  that  a  party  acted  as  and  exercised  the 
office  of  a  justice,  is  sufficient  evidence  of  his  being  one, 
without  producing  his  appointment  or  commission.  1  Spen 
cer,  295. 

SEC.  14.  Every  person  elected  or  appointed  to  any  office 
of  trust  or  profit,  under  the  authority  of  this  state,  Before 
he  enters  on  the  duties  of  his  office,  shall  take  and  subscribe 
to  the  following  oath  or  affirmation :  "  I  do  solemnly  swear 
[or,  'affirm,'  as  the  case  may  be]  tjaat  I  will  support  the 
constitution  of  the  United  States  and  the  constitution  of  the 
state  of  California,  and  that  I  will  faithfully  discharge  the  du 
ties  of  the  office  of  .  .  . ,  according  to  the  best  of  my  ability." 
And  such  oath  shall  be  indorsed  on  the  commission  or  cer 
tificate  of  election,  or  appointment  of  such  office,  and  signed 
by  him  and  certified  by  the  officer  before  whom  such  oath 
or  affirmation  shall  have  been  taken.  Gen.  Laws,  4735. 

SEC.  15.  The  oath  shall  be  taken  and  may  be  subscribed 
before  any  officer  authorized  by  law  to  administer  oaths, 
unless  otherwise  directed  by  law.  Gen.  Laws,  4738. 

SEC.  16.  It  shall  be  the  duty  of  every  officer  whose  oath 
of  office  is  required  to  be  Indorsed  on  his  commission  or 
certificate  of  election,  to  take  and  subscribe  said  oath  within 
ten  days  after  the  reception  of  his  said  commission  or  cer 
tificate,  or  within  ten  days  after  the  commencement  of  his 
term  of  office,  if  his  commission  or  certificate  shall  have 
been  received  by  him.  Gen.  Laws,  4739. 

SEC.  17.  Each  justice,  before  entering  upon  the  dis 
charge  of  his  duties,  shall*  take  the  constitutional  oath  of 
office,  and  shall  execute  a  bond  to  the  state,  in  a  sum  to  be 
fixed  by  the  board  of  supervisors  of  the  county,  conditioned 
for  the  faithful  performance  of  his  duties,  and  file  the  same 
with  the  county  clerk.  Gen.  Laws,  1284. 


20  JUSTICES'  TREATISE. 

FOKM. 

Of  Official  Bond  of  Justice  of  the  Peace. 

Know  all  men  by  these  presents,  that  we,  A  B,  as  principal,  and  C  D  and 

E  F,  of,  etc.,  as  sureties,  are  held  and  firmly  bound  unto  the  state  of , 

in  the  penal  sum  of dollars,  for  which  payment,  well  and  truly  to  be 

made,  we  bind  ourselves,  our  and  each  of  our  heirs,  executors,  administra 
tors,  jointly  and  severally,  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  the  ....  day  of  ....  A.D.  187. . 

Whereas,  the  above  bounden  A  B,  has  been  elected  to  the  office  of  justice  of 
the  peace,  at  the  last  judicial  election.  Now,  therefore,  the  condition  of  the 
above  obligation  is  such,  that  if  the  said  A  B,  shall  well  and  truly  and  faith 
fully  perform  and  execute  the  duties  of  justice  of  the  peace,  according  to  law 
and  according  to  the  requirements  of  any  law  to  be  hereafter  enacted,  then 
the  above  obligation  to  be  void;  else  to  remain  in  full  force. 

AB        [L.S.] 
CD        [I.B.  ] 

Signed  and  sealed  in  presence  of  EF         [L.S.] 


State  of  California,         | 

County  of j  ss> 

Personally  appeared  before  me,  J  K,  being  authorized  to  administer  an 
oath — the  above  named  C  D  and  E  F,  who  being  by  me  duly  sworn,  each 
for  himself,  deposes  and  swears,  that  he  is  a  resident  and  freeholder  or 

householder,  within  said  county  of ,  and  that  he  is  worth  the  amount 

for  which  he  becomes  surety,  to  wit :  the  sum  of dollars,  over  and 

above  all  his  debts  and  liabilities,  in  unincumbered  property,  situate  within 
said  state,  which 'may  be  levied  upon,  and  is  not  exempt  from  execution  and 
forced  sale.  C  j)_ 

E  F. 

Sworn  to  before  me,  this  ....  day  of  . . . .,  A.D.  18. .. 

J  K,  Justice  of  the  Peace. 

[  The  above  bond,  before  it  is  filed  with  the  county  clerk,  must  be  approved  by 
the  county  judge  of  the  county  in  which  the  justice  elected  or  appointed  is  to  serve.'] 

SEC.  18.  A  magistrate  who  is  found  acting  as  such,  must 
be  presumed  to  have  taken  the  requisite  oath.  4  Cranch,  75. 

SEC.  19.  Every  office  shall  become  vacant,  upon  the  hap 
pening  of  either  of  the  following  events,  before  the  expira 
tion  of  the  term  of  such  office : 

1st.  The  death  or  resignation  of  the  incumbent. 

2d.    The  removal  of  the  incumbent  from  office. 

3d.  The  confirmed  insanity  of  the  incumbent,  found  upon 
a  commission  of  lunacy  issued  to  determine  the  fact. 

4th.  A  conviction  of  the  incumbent,  of  a  felony  or  mis 
demeanor  in  office. 


JUSTICES  OF  THE  PEACE,   ELECTION  OF,   ETC.  21 

5th.  A  refusal  or  neglect  of  the  person  elected  or  ap 
pointed  to  take  the  oath  of  office,  as  prescribed  in  the 
seventeenth  section  of  this  act,  or  when  a  bond  is  required 
by  law,  his  refusal  or  neglect  to  give  such  bond  within  the 
same  time  in  which  he  is  required  to  take  the  oath  of  office. 

6th.  The  ceasing  of  the  incumbent  to  be  a  resident  of  the 
state,  district,  county,  city  or  township,  in  which  the  duties 
of  his  office  are  to  be  exercised  or  for  which  he  shall  have 
been  elected  or  appointed. 

7th.  The  ceasing  of  the  incumbent  to  discharge  the  duties 
of  his  office  for  the  period  of  three  consecutive  months,  ex 
cept  when  prevented  by  sickness  or  absence  from  the  state 
upon  leave,  as  provided  by  law. 

8th.  The  decision 'of  a  competent  tribunal  declaring  the 
election  or  appointment  void  or  the  office  vacant.  Gen. 
Laius,  4741. 

SEC.  20.  A  conviction  and  judgment  for  felony  against  a 
justice,  is  a  forfeiture  of  his  office,  and  incapacitates  him 
from  ever  afterwards  acting  under  his  commission;  nor  does 
a  pardon  avoid  the  forfeiture  or  restore  his  capacity.  2 
Leigh,  724. 

SEC.  21.  Where  a  justice  maliciously  issues  a  warrant, 
commanding  a  person  to  appear  before  him  and  answer  the 
complaint  of  another  person,  and  adjudged  him  to  pay 
costs,  when,  in  fact,  said  complaint  was  never  made  to  him, 
it  was  held  that  he  was  guilty  of  malfeasance,  and  he  was 
accordingly  indicted,  fined  and  removed  from  office.  2  Va. 
Cos.  130.  " 

SEC.  22.  Where  a  justice  nad  been  indicted  for  drunken 
ness  while  in  the  execution  of  his  official  duties,  and  tried 
by  a  jury  and  found  guilty,  it  was  held,  that  he  ought  to  'be 
removed  from  his  office.  1  Va.  Gas.  156,  308. 

SEC.  23.  An  indictment  does  not  lie  against  a  justice  of 
the  peace  for  mal-administration  ;  the  proceeding  is  by  im 
peachment.  2  Tyler,  177. 

SEC.  24.  That  a  removal  of  a  justice  from  his  county 
may  operate  to  vacate  his  commission,  it  must  be  with  the 
absolute  intent  to  change  his  place  of  residence.  C.  B. 
Hon.  214. 

SEC.  25.      A  temporary  removal  of  a  justice   from  his 


22  JUSTICES'  TKEATISE. 

county  with  an  intent  to  stay  four  months  and  then  return, 
does  not  vacate  his  office.  3  Bibb,  430. 

SEC.  26.  A  justice  of  the  county  of  A  left  the  state  with 
the  intent  to  reside  in  another  state.  He  remained  in  an 
other  state  nine  months,  but  did  not  establish  his  perma 
nent  residence  there.  He  then  returned  and  resumed  his 
former  residence  in  the  county  of  A,  in  Virginia  :  Held, 
that  he  had  no  right  to  resume  his  office  of  justice  of  A. 
2  Leigh,  743. 

SEC.  27.  Where  a  justice  forfeits  his  office  by  an  accept 
ance  of  another  office,  such  acceptance  does  not  vacate  such 
of  his  subsequent  acts  as  may  have  been  done  before  his 
disqualification  is  established  by  some  proper  judicial  tri 
bunal.  2  Va.  Cos.  59. 

SEC.  28.  If  a  justice,  having  been  legally  disqualified  to 
act  as  such,  continue  to  act  in  the  same  capacity  after  ac 
cepting  an  incompatible  office,  he  will  be  considered  as 
a  justice  of  the  peace,  de  facto,  so  far  as  third  persons  are 
concerned,  and  his  warrant  will  justify  the  officer  to  whom' 
it  is  directed  in  making  service  thereof.  2  Cusli.  577. 

SEC.  29.  The  acceptance  of  the  office  of  constable  of  a 
town  by  a  person  holding,  at  the  time,  the  office  of  justice, 
is  of  itself  a  surrender  of  the  latter  office.  25  Cow.  565. 


CHAPTER   II. 

JUBISDICTION  OF  JUSTICES.  - 

* 

SECS.  SECS. 


GENERAL  KULE  AS  TO  JURISDIC 
TION  1 

AMOUNT  IN  CONTKOYEESY 2-21 

NATURE  OF  ACTIONS  OF  WHICH 


JUSTICES    HATE    JURISDIC 
TION  22-32 

To  WHAT  ACTIONS  JUSTICES'  JU 
RISDICTION   SHALL    NOT    EX 


TEND  33-58 

General  Rule  as  to  Jurisdiction. 

SECTION  1.  As  a  general  rule,  justices  have  jurisdiction 
in  all  cases  at  law  in  which  the  demand,  exclusive  of  inter 
est  or  the  value  of  the  property  in  controversy,  is  less  than 
three  hundred  dollars.  Before  the  late  amendments  of  the 
constitution,  the  jurisdiction  of  justices  was  limited  to  all 


JUBISDICTION   OF  JUSTICES.  23 

cases  at  law  or  equity  where  the  amount  claimed,  exclusive 
of  interest,  did  not  exceed  two  hundred  dollars.  They  are 
now  deprived  of  all  equity  jurisdiction.  The  following  de 
cisions  referred  to,  in  connection  with  the  law  now  in  force 
denning  the  jurisdiction  of  justices,  were  rendered  in  cases 
arising  under  the  old  law  when  the  jurisdiction  was  limited 
to  two  hundred  dollars. 

Amount  in  Controversy. 

SEC.  2.  A  justice's  court  does  not  necessarily, exceed  its 
jurisdiction  by  rendering  a  judgment  for  more  than  three 
hundred  dollars.  The  judgment  may  exceed  the  amount 
in  controversy,  upon  which  alone  the  jurisdiction  depends. 
22  Cal  169. 

SEC.  3.  A  judgment  rendered  by  a  justice  of  the  peace 
for  two  hundred  and  nine  dollars  and  seventeen  cents, 
with  interest  at  three  per  cent,  per  month,  is  beyond  his 
jurisdiction.  The  judgment  was,  therefore,  properly  re^- 
versed  by  the  county  court,  but  it  should  have  dismissed 
the  case.  The  reversal  of  the  county  court  was  affirmed, 
and  the  cause  dismissed  from  the  consideration  of  the  jus 
tice.  5  Cal  331. 

SEC.  4.  The  jurisdiction  of  justices  being  entirely  statu 
tory,  as  we  have  already  seen,  it  differs,  of  course,  in  the 
different  states,  both  as  to  the  amount  and  as  to  the  nature 
and  character  of  the  actions.  The  following  decisions,  as  to 
the  amount  of  their  jurisdiction  in  other  states,  may  be 
found  useful.  It  will  readily  appear,  from  the  references  to 
the  reports,  in  what  states  the  decisions  were  rendered. 

SEC.  5.  If  the  first  count  show  a  case  within  the  jurisdic 
tion,  the  others  may  be  regarded  as  only  different  modes  of 
declaring  for  the  same  cause  of  action.  6  Vt.  91. 

SEC.  6.  Where  the  plaintiff  declares  for  an  indebtedness 
of  one  hundred  dollars  in  each  of  several  counts,  but  in  his 
specification  shows  a  balance  of  charges  and  credits  of  a  less 
sum,  a  justice  has  jurisdiction.  The  amount  of  the  original 
debt,  if  reduced  by  payments,  does  not  affect  the  jurisdic 
tion.  6  Vt.  573. 

So,  where  there  are  several  counts  in  a  declaration  which 
may  be  for  the  same  subject  matter,  the  aggregate  of  all  of 


24  JUSTICES'  TEEATISE. 

which  exceeds  one  hundred  dollars,  yet  if  the  ad  damnum 
is  but  one  hundred  dollars,  he  has  jurisdiction.  10  Vt. 
509.  * 

But  the  ad  damnum  in  a  writ  is  taken  as  a  test  of  appar 
ent  jurisdiction,  only  in  cases  where  the  declaration  does 
not  otherwise  limit  the  extent  of  the  plaintiff's  claim;  the 
excess  of  the  ad  damnum,  beyond  the  amount  within  the 
limit  of  the  jurisdiction,  will  be  treated  as  unmeaning  for 
any  purpose  of  affecting  jurisdiction,  if  the  amount  of  the 
judgment  sued  upon  and  described  in  the  declaration  be 
within  such  limit.  22  Vt.  (1  Washb.)  591. 

The  amount  stated  in  the  ad  damnum  being  mere  matter 
of  form,  does  not  determine  whether  the  justice  has  juris 
diction  or  not ;  that  is  shown  by  the  amount  recovered. 
3  Ala.  24. 

SEC.  7.  Where  the  declaration  contained  three  counts, 
each  claiming  fifty  dollars,  and  had  no  conclusion  limiting 
the  amount  claimed,  it  was  held  that  the  suit  should  be  dis 
missed  for  want  of  jurisdiction.  5  Blackf.  97. 

SEC.  8.  A  justice  has  not  jurisdiction  of  an  action  if  the 
amount  of  the  several  sums,  claimed  by  several  counts,  ex 
ceed  the  sum  of  which  he  has  jurisdiction.  5  Blackf.  357. 

He  cannot  take  jurisdiction  of  an  action  when  the  plaint 
iff,  in  his  declaration,  demands  more  than  the  sum  over 
which  the  law  gives  the  justice  jurisdiction ;  and  it  is  error 
for  him,  after  dismissing  an  action  for  want  of  jurisdiction, 
to  issue  execution  for  costs.  1  Chand.  (Wis.}  69. 

SEC.  9.  >  Where  the  jurisdiction  was  limited  to  fifty  dol 
lars,  each  count  of  the  declaration  had  its  own  conclusion, 
and  in  each  damages  were  laid  at  fifty  dollars.  It  was  held, 
that  the  plaintiff  demanded  one  hundred  dollars  damages, 
and  that  the  suit  must  be  dismissed  for  want  of  jurisdic 
tion.  4  Ind.  49. 

If  the  plaintiff  state  his  demand  at  an  amount  above  the 
sum  within  the  jurisdiction,  but  claims  damages  in  such 
sum,  the  justice  has  jurisdiction.  9  Johns.  (N.  Y.)  366. 

SEC.  10.  If  the  defendant  file  an  account  in  set-off, 
whereby  he  claims  a  balance  of  more  than  the  amount  for 
which  the  justice  has  jurisdiction,  his  account  is  to  be  re 
jected.  1  Carter  (Ind.)  389. 


JURISDICTION  OF  JUSTICES.  25 

A  justice  has  jurisdiction  of  a  set-off  exceeding  one  hun 
dred  dollars,  where  the  balance  claimed  by  the  defendant 
does  not  exceed  that  sum.  And  it  seems  that  if  the  balance 
exceeds  that  sum,  the  justice  must  either  allow  so  much  of 
the  note  as  will  set  off  the  plaintiff's  claim  and  give  judg 
ment  for  the  defendant  for  costs,  or  dismiss  the  suit  alto 
gether.  3  Scam.  (Ill)  298. 

SEC.  11.  The  division  of  a  note  of  upwards  of  one  hun 
dred  dollars,  into  several  notes  of  less  amount,  by  the  act 
of  the  parties,  so  that  judgments  may  be  taken  on  them  be 
fore  a  justice,  is  not  either  in  fraud  or  evasion  of  the  statute 
prescribing  his  jurisdiction.  2  Ired.  63. 

In  suits  under  the  statutes  which  authorized  him  to  take 
jurisdiction,  where  the  amount  claimed  by  any  one  creditor 
does  not  exceed  one  hundred  dollars,  it  was  held  that  the 
same  auditor  might  file  three  separate  claims,  each  amount 
ing  to  one  hundred  dollars,  with  a  separate  affidavit  and 
bond,  and  each  claim  would  constitute  a  single,  independ 
ent  suit,  and  that  the  plaintiff  would  be  as  to  each  claim,  a 
separate  creditor.  5  Ind.  {Porter)  439. 

Where  two  distinct  suits  are  brought  before  the  same 
justice,  on  the  same  day,  upon  two  demands  which  might 
be  consolidated  into  one  suit,  and  which,  when  thus  con 
solidated,  would  not  exceed  one  hundred  dollars,  and  one 
suit  is  dismissed  and  judgment  is  rendered  on  the  other, 
the  proceedings  are  regular.  1  Scam.  152. 

SEC.  12.  A  debtor  and  a  creditor  may  lawfully  change 
one  large  debt  due  by  note  not  within  the  jurisdiction,  to 
several  smaller  ones  within  that  jurisdiction.  5  Yerg.  297. 

One  suit  may  be  brought  on  several  notes  where  neither 
of  the  notes  is  for  a  greater  sum  than  one  hundred  dollars, 
though  the  aggregate  sum  of  all  the  notes  may  exceed  that 
amount.  4  Eng.  463. 

A  justice  may  have  jurisdiction  of  a  suit  though  the 
plaintiff's  account  exceed  one  hundred  dollars,  if  it  be  re 
duced  by  credits  below  that  sum,  and  the  balance  only  be 
demanded.  3  Blackf.  460. 

SEC.  13.  Though  a  note  filed  as  a  cause  of  action  be,  on 
its  face,  for  a  sum  beyond  a  justice's  jurisdiction,  yet,  if  the 
amount  actually  demanded  and  recovered  be  written  on  it, 
4 


26  JUSTICES'  TREATISE. 

the  presumption  is  that  the  note  had  been  so  reduced  by 
credits  as  to  authorize  him  under  the  statute  to  take  cog 
nizance  of  the  cause.  6  Blackf.  64. 

SEC.  14.  In  actions  of  indebitatus  assumpsit  and  debt 
upon  executed  contracts,  the  plaintiff  may  relinquish  a  part 
of  his  claim,  with  a  view  to  give  jurisdiction,  and  recover 
judgment  for  the  balance.  The  judgment  recovered  is  a 
bar  to  a  suit  for  the  part  relinquished,  if  pleaded.  4 
Humph.  108. 

SEC.  15.  In  an  action  on  an  open  account,  which  is  all 
due  at  the  time  the  suit  is  brought,  amounting  to  more  than 
fifty  dollars,  the  plaintiff  may  remit  or  leave  out  a  sum  to 
reduce  the  amount  to  the  jurisdiction  ;  but  the  balance 
remitted  or  left  out  could  never  be  collected.  1  Chand. 
(Ms.)  254. 

SEC.  16.  A  creditor  may  relinquish  a  part  of  hjg  claim 
so  as  to  bring  it  within  the  jurisdiction.  2  Stew.  487. 

Credits  given  to  bring  a  case  within  the  jurisdiction,  must 
be  specifically  stated.  1  Pain.  206. 

Any  party  has  a  right  to  waive  a  recovery  for  dama 
ges  without  regard  to  the  purposes  which  may  influence 
him.  And  it  often  happens  in  courts  of  record,  even  after 
verdict  and  judgment,  that  a  party  is  compelled  to  enter  a 
remittitur  of  damages  in  order  to  conform  his  recovery  to 
his  actual  rights ;  and  it  is  a  privilege  which  is  certainly 
never  denied,  whether  the  question  is  one  of  jurisdiction  or 
otherwise.  6  Cal.  414. 

SEC.  17.  Where  it  appears  from  the  account  of  the 
plaintiff  that  he  claims  less  than  one  hundred  dollars,  the 
justice  is  not  ousted  of  his  jurisdiction,  though  a  witness 
should  prove  that  the  plaintiff  was  entitled  to  more  than  one 
hundred  dollars.  The  plaintiff's  own  claim  must  determine 
the  jurisdiction.  Breese,  263. 

SEC.  18.  A  justice  has  not  jurisdiction  of  a  garnishment 
where  the  interrogatories  show  an  indebtedness  of  the  gar- 
nishee  to  the  principal  defendant,  in  a  sum  exceeding  one 
hundred  dollars.  5  Pike,  214. 

SEC.  19.  Where  an  account  in  set-off  exceeds  the  plaint 
iff's  claim  by  an  amount  exceeding  the  jurisdiction,  it  should 
be  rejected.  1  Smith,  208. 


JURISDICTION  OF  JUSTICES.  27 

SEC.  20.  A  defendant  need  not  appear  to  a  summons  of 
a  justice,  laying  damages  at  one  hundred  dollars,  as  he  has 
no  jurisdiction.  6  Hill,  631. 

Objection  to  the  jurisdiction  on  the  ground  of  excess  in 
the  value  of  the  subject  of  controversy,  is  properly  made  by 
the  answer,  and  that  should  be  first  determined  before  the 
justice  proceeds  to  hear  the  merits  of  the  case.  6  Cal.  449. 

SEC.  21.     A  defendant  should  be    allowed  to  prove  an 
allegation  in  his  answer  that  the  thing  in  controversy  ex 
ceeds  in  value  the  constitutional  limit  of  a  justice's  juris 
diction.     7  Cal.  105. 
• 

Nature  of  Actions  of  -which  Justices  have  Jurisdiction. 

SEC.  22.  These  courts  shall  have  jurisdiction  within 
their  respective  townships  or  cities,  of  the  following  actions 
and  proceedings : 

1st.  Of  an  action  arising  on  contract,  for  the  recovery  of 
money  only,  if  the  sum  claimed,  exclusive  of  interest,  is  less 
than  three  hundred  dollars. 

2d.  Of  an  action  for  damages  for  injury  to  the  person, 
or  for  taking  or  detaining  personal  property,  or  for  injury 
to  real  or  personal  property,  if  the  damages  claimed  are 
less  than  three  hundred  dollars. 

3d.  Of  an  action  for  a  fine,  penalty  or  forfeiture,  in  a 
sum  less  than  three  hundred  dollars,  given  by  statute  or  the 
ordinance  of  an  incorporated  city  or  town. 

4th.  Of  an  action  on  a  bond  or  undertaking  conditioned 
for  the  payment  of  money,  in  a  sum  less  than  three  hundred 
dollars,  though  the  penalty  exceed  three  hundred  dollars; 
the  judgment  to  be  given  for  the  sum  actually  due.  "When 
the  payments  are  to  be  made  by  installment,  an  action  may 
be  brought  for  each  installment  as  it  becomes  due. 

5th.  Of  an  action  for  the  foreclosure  of  any  mortgage, 
or  the  enforcement  of  any  lien  on  personal  property,  when 
the  debt  secured  is  less  than  three  hundred  dollars,  exclu 
sive  of  interest. 

6th.  Of  an  action  to  recover  possession  of  personal 
property,  when  the  value  of  such  property  is  less  than 
three  hundred  dollars. 

7th.   To  take  and  enter  judgment  on  the  confession  of  a 


28  JUSTICES'  TREATISE. 

defendant,  when  the  amount  confessed  is  less  than  three 
hundred  dollars,  exclusive  of  interest. 

8th.  Of  an  action  to  determine  the  right  to  a  mining 
claim,  when  the  value  of  the  claim  is  less  than  three  hun 
dred  dollars,  and  for  damages  for  injury  to  the  same  when 
the  damages  claimed  are  less  than  three  hundred  dollars. 

9th.  Of  proceedings  respecting  vagrancy  and  disorderly 
persons. .  Gen.  Laws,  1279. 

SEC.  23.  The  amount  in  controversy  which,  in  actions 
on  contract,  determines  the  jurisdiction,  is  the  principal 
sum  sued  for,  exclusive  of  costs.  22  Cal.  169." 

SEC.  24.  Justices  have  jurisdiction  of  actions  upon  judg 
ments.  A  judgment  is  a  contract,  and  by  the  statute  jus 
tices'  courts  are  invested  with  jurisdiction  of  actions  upon 
all  contracts  for  the  recovery  of  money,  where  the  amount 
in  dispute  does  not  exceed  the  constitutional  limits.  Chitty 
says  that  judgments  are  contracts  by  specialty,  and  they  are 
so  treated  by  the  authorities  generally.  16  Cal.  375. 

Ames  vs.  Hoy  (12  Cal.  375),  was  an  action  upon  a  judg 
ment  rendered  in  this  state,  and  it  was  held  that  such  an 
action  could  be  maintained,  even  though  an  execution 
might  be  issued  to  enforce  the  judgment.  16  Cal.  375. 

SEC.  25.  The  foreclosure  of  a  mortgage  and  sale  of  the 
mortgaged  property  for  the  payment  of  the  debt  thereby 
secured,  is  a  "case  in  equity,"  of  which  the  district  courts 
alone  can  take  cognizance.  24  Cal.  491. 

SEC.  26.  In  replevin,  the  value  of  the  property  claimed 
by  the  declaration,  and  not  by  the  affidavit,  decides  as  to 
the  jurisdiction  of  the  Court.  3  Ired.  548. 

SEC.  27.  In  an  action  of  ejectment,  the  defendant  claimed 
title  by  virtue  of  a  purchase  at  a  constable's  sale,  upon  exe 
cution  issued  by  a  justice  against  the  plaintiff  in  ejectment 
for  the  sum  of  three  hundred  and  eighteen  dollars.  The 
docket  of  the  justice  showed  that  suit  was  originally  com 
menced  for  the  sum  of  two  hundred  dollars,  but  that  the 
present  plaintiff,  then  defendant,  appeared  and  confessed 
judgment  for  three  hundred  dollars,  whereupon  judgment 
was  duly  entered  for  three  hundred  dollars,  and  eighteen 
dollars  costs. 

The  supreme   court  say  :  Justices  cannot  entertain  suits 


^  JURISDICTION   OF  JUSTICES.  29 

for  money  demands,  where  the  amount  in  controversy  ex 
ceeds  two  [now  three]  hundred  dollars.  Consent  of  parties 
cannot  give  a  jurisdiction  which  the  constitution  denies.  It 
makes  no  difference  whether  the  judgment  was  suffered  vol 
untarily  or  not.  It  was  for  all  purposes  absolutely  void, 
and  the  execution  and  sale  under  it  a  nullity.  8  Cat,  77. 

So,  where  proceedings  were  commenced  to  recover  a  debt 
less  than  one  hundred  dollars,  and  the  defendant  confessed 
judgment  for  a  sum  exceeding  one  hundred  dollars,  and  con 
sequently  beyond  the  justice's  jurisdiction,  and  the  amount 
was  paid  to  the  justice  without  execution  issued,  it  was  held 
that  the  sureties  of  the  justice  were  responsible  for  it  to  the 
plaintiff.  8  Barr,  415. 

SEC.  28.  Although  the  jurisdiction  of  mining  claims  is 
given  to  justices — that  of  the  district  courts  remains  unaf 
fected  if  the  amount  in  controversy  exceeds  two  [three]  hun 
dred  dollars.  3  Cat.  224. 

SEC.  29.  Plaintiffs  brought  an  action  in  a  justice's  court 
to  recover  possession  of  a  mining  claim,  and  for  damages 
for  injuries  done  thereto  by  Defendants.  The  defendants 
answered,  and  on  trial  moved  to  dismiss  the  action  for  the 
reason  that  two  causes  of  action  were  improperly  united. 
The  justice  overruled  the  motion.  The  jury  found  a  verdict 
for  defendants,  and  judgment  was  entered  accordingly,  from 
which  plaintiffs  appealed  to  the  county  court.  There  the 
motion  to  dismiss  was  renewed  and  granted,  and  the  action 
dismissed.  Plaintiffs  appealed. 

The  supreme  court  say  :  Justices  cannot  take  any  juris 
diction  by  implication.  The  law  gives  them  authority  to 
try  the  right  to  a  mining  claim  where  the- value  does  not  ex 
ceed  two  hundred  dollars,  but  it  confers  no  jurisdiction  to 
give  damages  for  an  injury  to  a  mining  claim,  or  for  its  de 
tention.  But  this  is  not  the  case.  The  plaintiff  sues  for 
the  mining  claim — that  is  the  cause  of  his  action.  His 
prayer  for  damages  might  have  deen  stricken  out,  or  might 
have  been  disregarded.  It  ought  not  to  have  turned  him 
out  of  court.  The  rule  is  "Utile  per  inutile  non  vitiatur." 
And,  besides  this,  the  courts  are  always  gentle  and  indul 
gent  to  pleadings  before  these  inferior  tribunals.  6  Col.  19. 

SEC.  30.     An  action  was  instituted  before  a  justice  for  the 


30  JUSTICES'  TREATISE. 

recovery  of  a  mining  claim,  and  for  five  hundred  dollars 
damages.  The  defendants  recovered  judgment,  and  plaint 
iff  appealed  to  the  county  court.  On  the  case  being  called 
for  trial  in  that  court,  the  plaintiff  moved  to  be  allowed  to 
amend  his  complaint  by  striking  out  the  prayer  for  damages. 
This  motion  being  opposed  on  the  part  of  defendant,  was 
overruled  by  the  court. 

On  appeal,  the  supreme  court  says  :  Any  party  has  a 
right  to  waive  a  recovery  for  damages,  without  regard  to 
the  purpose  which  may  influence  him.  And  it  often  hap 
pens  in  courts  of  record,  even  after  verdict  and  judgment, 
that  a  party  is  compelled  to  enter  a  remittitur  of  damages 
in  order  to  conform  his  recovery  to  his  actual  rights ;  and 
it  is  a  privilege  which  is  certainly  never  denied,  whether 
the  question  is  one  of  jurisdiction  or  otherwise.  In  this 
case  particularly,  the  plaintiff  was  right  in  moving  to  with 
draw  his  claim  for  damages,  for  it  has  been  before  held  that 
justices  had  no  jurisdiction  of  such  claims  in  actions  of 
this  character,  and  a  former  case  was  reversed  because  the 
ground  of  its  dismissal  was  a  grayer  for  damages  exceeding 
the  jurisdiction  of  the  justice,  the  court  holding  that  it 
should  have  been  stricken  out  or  disregarded,  and  ought 
not  to  have  turned  the  party  out  of  court.  6  Col.  413,  414. 

SEC.  31.  In  an  action  to  try  the  right  to  a  mining  claim 
in  a  justice's  court,  the  defendant's  answer  averred  that  the 
value  of  the  mining  claim  in  dispute  wras  three  hundred  dol 
lars,  and  that  the  justice  had  no  jurisdiction  to  try  the 
cause. 

On  the  trial  in  the  county  court,  the  defendant  moved  to 
dismiss  the  action,  for  want  of  jurisdiction,  on  the  ground 
that  the  property  in  dispute  was  real  property,  which 
motion  was  overruled.  Plaiirtiff  then  moved  to  strike  from 
the  answer  the  allegation  that  said  claim  was  of  the  value 
of  three  hundred  dollars,  which  motion  was  sustained,  the 
defendant  excepting.  Judgment  was  entered  for  plaintiff. 
Defendant  moved  for  a  new  trial,  which  being  overruled,  he 
appealed. 

The  supreme  court  say :  The  legislature  cannot  con 
fer  on  justices  any  jurisdiction  where  the  amount  in  con 
troversy  exceeds  two  hundred  dollars.  There  can  be  no 


JURISDICTION   OF  JUSTICES.  31 

exception  to  this  rule ;  and  in  construing  the  statute  giving 
them  jurisdiction  of  mining  claims,  we  expressly  confine  it 
to  such  as  are  of  the  value  of  two  hundred  dollars. 

The  objection  to  the  jurisdiction  of  the  justice,  on  the 
ground  of  excess  in  the  value  of  the  subject  of  controversy, 
was  properly  made  by  the  answer,  and  that  should  have 
been  first  determined  before  he  proceeded  to  hear  the 
merits  of  the  case.  6  Cal.  449. 

SEC.  32.  An  action  was  brought  for  the  recovery  of  the 
possession  of  a  mining  claim,  before  a  justice,  who  rendered 
judgment  for  defendants.  Plaintiffs  appealed  to  the  county 
court,  where  a  trial,  de  novo,  was  had,  and  judgment  entered 
for  the  plaintiffs.  On  the  trial  in  the  county  court,  the 
defendants  offered  to  prove  one  of  the  allegations  in  their 
answer,  that  the  claim  in  controversy  exceeded  in  value  the 
sum  of  two  hundred  dollars,  which  the  court  refused  to 
permit  them  to  do.  Defendants  appealed. 

The  supreme  court  say :  The  jurisdiction  of  justices  is 
limited  by  the  constitution  to  cases  in  which  the  amount 
involved  does  not  exceed  two  hundred  dollars.  It  follows 
that  the  court  erred  in  refusing  to  allow  defendants  to 
prove  the  value  of  the  mining  claim,  as  alleged  in  their 
answer.  7  Cal,  105. 

To  what  Actions  Justices'  Jurisdiction  shall  not  extend. 

SEC.  33.  The  jurisdiction  conferred  by  the  last  section 
shall  not  extend,  however  : 

1st.  To  a  civil  action  in  which  the  title  or  possession  of 
real  property  shall  necessarily  come  in  question. 

2d.  Nor  to  an  action  or  proceeding  against  ships,  vessels, 
or  boats,  or  against  the  owners  or  masters  thereof,  when  the 
suit  or  proceeding  is  for  the  recovery  of  seamen's  wages  for 
a  voyage  performed  in  whole  or  in  part  without  the  waters 
of  this  state.  Gen,  Laws,  1280. 

SEC.  34.  Has  a  justice  jurisdiction  of  a  cause  brought  for 
damages  arising  from  injuries  alleged  to  have  been  inflicted 
by  the  defendants  upon  the  plaintiff,  by  the  partial  destruc 
tion  of  mining  ditches  belonging  to  the  plaintiff,  and  the 
wrongful  diversion  of  water  into  ditches  belonging  to  the 
defendants? 


32  JUSTICES'  TREATISE. 

The  jurisdiction  of  justices  embraces  actions  for  damages 
for  taking,  detaining  and  injuring,  personal  property ;  and 
actions  for  the  recovery  of  personal  property,  where  the 
value  of  the  property  does  not  exceed  the  limit  to  which  the 
court  is  confined  in  the  exercise  of  its  jurisdiction.  Where 
there  is  a  right  to  the  use  of  water  for  mining  purposes  and 
the  appropriation  of  it,  a  diversion  of  the  stream  could  not 
be  called  an  injury  to  personal  property,  in  the  meaning  of 
the  law.  It  seems  clear,  that  while  the  legislature  has  con 
ferred  upon  justices  jurisdiction  of  an  action  to  determine 
the  right  to  mining  claims,  yet  that  it  never  was  its  inten 
tion  to  confer  upon  these  courts  power  to  hear  and  deter 
mine  causes  in  which  there  may  be  conflicts  as  to  the  right  to 
the  use  of  water. 

The  right  to  running  water  is  defined  to  be  a  corporal 
right  or  hereditament  which  follows  or  is  embraced  by  the 
ownership  of  the  soil  over  which  it  naturally  passes.  From 
the  policy  of  our  laws,  it  has  been  held  in  this  state  to 
exist  without  private  ownership  of  the  soil — upon  the 
ground  of  prior  location  upon  the  land,  or  prior  appropria 
tion  and  use  of  the  water.  The  right  to  water  must  be 
treated  in  this  as  it  has  always  been  treated,  as  a  right  run 
ning  with  the  land,  and  as  a  corporal  privilege  bestowed 
upon  the  occupier  or  appropriator  of  the  soil ;  and  as  such 
has  none  of  the  characteristics  of  mere  personalty.  It  there 
fore  follows,  that  a  justice  has  no  power  conferred  upon 
him  to  try  a  cause  where  there  is  an  alleged  injury  arising 
out  of  a  diversion  of  water  from  the  natural  or  artificial 
channel  in  which  it  is  conducted.  5  Cal.  445,  446  ;  3  Harr. 
430. 

SEC.  35.  In  most,  if  not  in  all,  of  the  other  states  there 
are  similar  statutory  provisions  depriving  justices  of  juris 
diction  of  civil  actions  in  which  the  title  or  possession  of 
real  property  shall  necessarily  come  in  question.  The  fol 
lowing  decisions  in  other  states  are,  therefore,  inserted 
here.  In  what  states  they  were  rendered  will  be  seen  by 
the  references  to  the  reports  : 

SEC.  36.  Where  the  complaint  is  so  drawn  that  the  de 
fendant  can  set  up  title  in  his  answer,  and  on  giving  his 
requisite  security,  oust  the  justice  of  his  jurisdiction,  but 


JURISDICTION   OF  JUSTICES.  33 

omits  to  do  so,  tlie  justice  retains  his  jurisdiction,  and  the 
defendant  will  be  precluded  from  drawing  it  in  question,  on 
the  trial.  11  Barb.  Sup.  Ct.  390. 

So,  in  an  action  to  recover  penalties  for  passing  a  toll-gate 
without  paying  the  tolls,  if  the  defendant  intends  to  raise 
the  question  of  title,  he  should  set  forth  in  his  answer  the 
matter  showing  that  title  will  come  in  question,  and  should 
give  the  undertaking.  If  he  does  not  do  so,  the  justice  has 
jurisdiction  of  the  cause,  and  the  defendant  is  precluded  in 
his  defense  from  drawing  the  title  in  question.  27  Barb. 
(N.  Y.)  214. 

SEC.  37.  In  an  action,  for  disturbing  a  right  of  way,  the 
defendant  having  established  the  title  of  the  plaintiff  by 
his  own  evidence,  and  having  answered  by  a  general  denial, 
the  title  to  real  estate  cannot  be  said  to  come  in  question 
so  as  to  oust  a  justice's  court  from  jurisdiction.  1  E.  D. 
Smith  (N.  Z)  402. 

A  contract  for  coal  or  stone  is  not  a  real  contract,  and  an 
action  for  the  price  of  such  articles  is  within  his  jurisdic 
tion.  27  Penn.  State  R.  323. 

SEC.  38.  Where  title  to  real  estate  is  not  pleaded,  he  is 
not  ousted  of  his  jurisdiction,  because  it  may  be  necessary 
to  prove  title,  unless  such  title  shall  be  disputed  by  the 
defendant.  15  Barb.  96. 

SEC.  39.  An  agreement  to  remove  a  fence  and  open,  a 
road  to  its  original  width,  has  no  reference  to  the  title  to 
land,  so  as  to  take  it  out  of  his  jurisdiction.  10  Johns.  109. 

SEC.  40.  In  an  action  of  trespass  on  land,  the  plea  of 
title  comes  too  late,  after  pleading  the  general  issue  de 
manding  a  jury  and  obtaining  an  adjournment.  15  Johns. 
304. 

A  plea  of  title  and  a  compliance  with  the  requirements 
of  the  statute  in  such  cases,  does  not  oust  him  of  jurisdic 
tion,  in  an  action  of  debt  for  a  penalty  for  not  removing  an 
obstruction  in  a  highway.  It  is  his  duty  «to  decide  whether 
such  plea,  when  put  in,  is  appropriate  to  the  action  prose 
cuted  before  him.  7  Wend.  291. 

SEC.  41.  Where,  in  an  action  on  the  case  for  obstructing 
a  river,  the  plaintiff  claims  that  such  river  was  a  public 
highway  at  common  law,  and  has  been  declared  such  by 
5 


34  JUSTICES'  TEEATISE. 

statute,  without  making  any  other  proof  of  his  right,  and 
no  fact  is  shown  by  the  defendant  to  controvert  the  right 
thus  declared  by  law,  but  he  pleads  the  general  issue 
and  introduces  in  evidence  a  grant  from  the  legislature 
authorizing  him  to  erect  and  maintain  a  dam  across  the 
river  of  such  construction  as  not  to  interfere  with  the  pub 
lic  right  of  passage,  the  title  to  land  does  not  come  in  ques 
tion  so  as  to  oust  the  justice  of  his  jurisdiction  to  try  the 
cause.  8  Barb.  Sup.  Ct.  239. 

The  production  of  such  a  grant,  by  the  defendant,  is  evi 
dence  that  he  holds  in  subserviency  to  the  public  right  of 
passage,  if  it  does  not  estop  him  from  asserting  the  contrary. 
8  Barb.  Sup.  Ct.  239. 

The  questions  in  issue  in  a  such  case,  namely  :  whether 
the  defendant  has  obstructed  the  navigation  of  the  river, 
and  if  so,  whether  the  plaintiff  has  suffered  injury  thereby, 
are  such  as  a  justice  may  lawfully  try.  8  Barb.  Sup.  Ct. 
239. 

SEC.  42.  He  has  jurisdiction  in  an  action  for  the  use  and 
occupation  of  land,  where  the  title  to  the  land  does  not  come 
in  controversy,  although  there  may  have  been  no  express 
agreement  or  contract  for  rent.  3  Eng.  118. 

So  where  the  title  to  real  estate  is  admitted  as  by  demur 
rer  to  a  declaration  alleging  it.  2  Doug.  184. 

So  also  of  an  action  of  trespass  on  the  case  brought 
against  a  town  to  recover  for  injuries  alleged  to  have  been 
sustained  by  reason  of  the  insufficiency  of  a  highway,  which 
the  town  were  bound  to  maintain,  where  the  damages 
claimed  are  less  than  one  hundred  dollars,  unless  the  de 
fendants  interpose  such  a  plea  as  directly  puts  in  issue  the 
right  of  way.  19  Ft.  (4  Washb.}  223. 

SEC.  43.  To  a  suit  on  a  promissory  note,  a  plea  that  the 
note  was  given  in  consideration  that  the  payee  Avould  convey 
land  to  the  defendant,  that  the  payee  had  no  title  to  the 
certain  land  and  ^hat  he  had  failed  to  make  the  deed,  does 
not  oust  the  justice  of  jurisdiction.  7  Blackf.  302. 

A  justice  may  try  a  question  of  actual  possession  of  land. 
6  Hill,  537. 

Question  not  being  a  question  of  title,  within  the  mean 
ing  of  the  statute.  27  Barb.  (N.  Y.)  214. 


JURISDICTION  OF  JUSTICES.  35 

A  justice  has  jurisdiction  in  a  suit  brought  by  an  indorsee 
on  a  promissory  note,  though  land  is  the  consideration  of  the 
note.  5  Watts,  482. 

SEC.  44.  An  action  of  covenant  broken  on  a  deed  to  con 
vey  land  in  which  a  breach  is  assigned  that  the  defendant  was 
not  seized  or  had  no  right  to  convey  the  lanc\,  brings  the 
title  to  real  estate  directly  in  question,  and  is  therefore  not 
within  the  jurisdiction.  2  Mass.  455,  462,  note. 

SEC.  45.  A  question  as  to  a  private  right  of  way  affects 
the  title  to  lands,  and  therefore  is  not  within  the  jurisdiction. 
2  Dutch.  (N.  J.)  308 ;  1  Harr.  226. 

Neither  can  a  justice  try  a  question  of  title  to  a  highway. 
2  Soot.  54;  19  Vt.  (4  Washb.)  223. 

Where  the  title  to  land  is  concerned  in  an  action,  and  the 
justice  consequently  has  no  jurisdiction,  it  is  a  defect  which 
may  be  taken  advantage  of  at  any  time  during  the  pendency 
of  the  action.  26  Vt.  (3  Deane)  491. 

SEC.  46.  The  rule  with  respect  to  the  justice's  jurisdic 
tion  in  trespass  is,  that  when  the  nature  of  the  action  is 
such  that,  in  order  to  maintain  it,  the  plaintiff  must  neces 
sarily  show  on  his  part  whatever  may  be  the  defense,  some 
thing  more  than  the  pedis  possessio,  the  mere  actual  occupa 
tion,  and  must  give  some  evidence  of  title  strictly  so  called, 
the  action  is  not  cognizable  in  a  justice's  court ;  but  where 
the  plaintiff  need  give  evidence  of  no  more  besides  the 
commission  of  the  alleged  trespass  than  of  the  mere  posses 
sion,  the  action  is  cognizable  and  may  proceed  to  judg 
ment,  unless  the  defendant  shall  interpose  a  plea  of  title, 
and  thereby,  under  the  statute,  suspend  the  jurisdiction. 
6  Hoist.  62,  164. 

SEC.  47.  If  a  plaintiff,  in  order  to  sustain  his  action,  is 
obliged  to  rely  upon  and  prove  a  possessory  title,  even  to 
premises  described  in  his  declaration,  a  justice  has  no  juris 
diction  of  the  suit.  20  Ft.  (5  Washb.)  183. 

SEC.  48.  The  term  "land,"  as  used  in  the  exception  to 
the  statute  giving  jurisdiction  to  justices,  is  sufficiently  com 
prehensive  to  include  a  right  of  way  over  the  real  estate  of 
another,  whether  held  by  the  public  or  an  individual.  19 
Ft.  <4  Washb.)  223. 

But  a  justice  is  not  excluded  from  taking  jurisdiction  of 


36  JUSTICES'  TREATISE. 

an  action,  merely  because,  under  the  plea  of  the  general 
issue  or  a  plea  in  bar,  the  title  of  land  may  be  drawn  into 
controversy,  but  only  when  the  action  necessarily  involves 
such  an  inquiry  as  ejectment  and  other  real  actions,  or 
when,  by  the  course  of  pleading,  the  title  to  land  is  actually 
contested.  19  Vt.  (4  Washb.)  223. 

He  is  not  divested  of  his  jurisdiction  over  the  case  in  all 
respects :  he  still  retains  the  power  to  act  on  a  motion  to 
waive  or  amend  the  plea,  or  to  amend  the  declaration,  or  to 
new  assign';  and  if  the  pleadings,  as  definitely  fixed  by  the 
parties,  do  not  present  a  question  of  title  to  real  estate,  he 
should  proceed  to  try  the  cause.  19  Pick.  419,  422,  note, 
167. 

He  has  no  jurisdiction  in  an  action  of  trespass  quare 
clausum,  where  the  defendant  justifies  on  the  ground  that 
the  locus  in  quo  is  a  highway.  19  Wend.  373;  6  Hill,  342. 

Nor  in  an  action  for  damages  by  overflowing  the  plaintiff's 
land.  3  Harr.  430;  2  South.  507. 

SEC.  49.  The  judgment  given  in  a  case  where  the  title  to 
land  plainly  comes  in  question,  is  not  void  for  want  of  juris 
diction,  but  voidable  for  error.  6  Hill,  44. 

He  •  has  no  more  authority  to  judge  of  the  plea  of  a  title 
on  demurrer  than  on  the  merits.  2  Hoot,  359. 

To  entitle  a  defendant  to  a  dismissal  of  a  cause,  pending 
before  a  justice,  on  the  ground  that  the  title  to  land  comes 
in  question,  he  must  call  the  justice's  attention  specifically 
to  the  objection,  by  at  least  disputing  the  title  of  the  plaint 
iff.  £  Barb.  Sup.  Ct.  239. 

Where  the  title  to  land  is  concerned  in  an  action,  and  the 
justice  consequently  has  no  jurisdiction,  it  is  a  defect  which 
may  be  taken  advantage  of  at  any  time  during  the  pendency 
of  the  action.  26  Vt.  (3  Deane)  491. 


CHAPTER  III. 
CONTKACTS IN  GENEEAL. 

SECTION  1.  The  statute  gives  to  justices  of  the  peace  juris 
diction  of  actions  arising  on  contracts  for  the  payment  of 
money  only.  In  this  class  of  actions  is  included  every  claim 


CONTRACTS  IN  GENEEAL.  61 

of  money  owing,  whether  the  claim  is  upon  a  written  in 
strument  or  a  promissory  note,  or  any  other  obligation,  in 
writing,  to  pay  money,  or  whether  the  claim  arises  upon 
promises  to  pay,  not  in  writing,  as  for  the  price  of  goods 
sold  or  for  the  value  of  services  performed,  at  the  request 
of  another.  Nor  is  it  necessary  that  the  price  of  the  goods 
or  the  value  of  the  services  be  agreed  between  the  parties. 

The  party  at  whose  instance  the  goods  are  sold  or  ser 
vices  rendered,  must  pay  to  the  party  selling  the  goods  or 
rendering  the  services  their  value  in  money,  to  be  determ 
ined  by  proof  in  the  absence  of  an  agreement.  This  rule 
asises  from  a  plain  and  obvious  necessity,  that  unless  the 
contrary  can  be  proved,  it  must  be  assumed  that  whenever 
a  state  of  facts  exists  which  makes  it  the  duty  of  a  party  to 
pay  money,  he  is  supposed  to  have  contracted  to  pay  it. 
The  statute  says :  "on  contract  for  the  payment  of  money 
only.'"  From  this  language  it  is  manifest  that  a  justice  can 
render  a  judgment  for  money  only.  If,  therefore,  a  note  is 
given  payable  in  wheat,  or  potatoes  or  other  article  not 
money,  and  is  not  paid  at  the  time  agreed  upon  in  the  article 
promised,  the  contract  then  becomes  one  to  pay  the  value  of 
such  article  in  money.  If  the  claim  be  not  less  than  three 
hundred  dollars,  a  justice  cannot  entertain  jurisdiction  of  it. 
If,  however,  the  plaintiff  only  demand  judgment  for  a  sum 
less  than  three  hundred  dollars,  exclusive  of  interest,  i^  the 
demand  draws  interest  he  may  act,  although  there  be  more 
than  that  sum  due  upon  the  contract.  Freeman  vs.  Powers, 
1  Cal.  104. 

SEC.  2.  .  There  are  three  classes  of  contracts :  1st.  Con 
tracts  of  record,  such  as  judgments.  2d.  Specialties  or  sealed 
contracts,  as  deeds,  covenants  and  bonds ;  and  3d.  Simple 
contracts,  in  which  are  included  all  contracts  or  agreements 
not  under  seal,  whether  they  be  in  writing  or  mere  verbal 
promises.  Contracts  not  under  seal,  are  called  parol  con 
tracts  or  parol  agreements,  though  they  be  in  writing.  Cow- 
en's  T)~eatise,  40. 

SEC.  3.  Mutual  agreement  of  the  parties  to  a  contract  is 
necessary  to  its  validity.  The  judgment  or  decree  of  a  court, 
is  a  mutual  agreement  in  law,  founded  upon  the  principle 
that  the  parties  to  the  action  agree  to  abide  the  judgment 


38  JUSTICES'  TBEATISE. 

or  decree  of  the  court  into  which  they  have  gone  for  the 
settlement  of  their  claims.  The  law  assumes,  that  a  hus 
band  has  contracted  to  pay  for  necessaries  furnished  to  his 
wife  or  his  child,  whom  he  wrongfully  drives  from  his 'house, 
although  he  may  have  published  a  notice  that  he  will  not 
pay  for  their  support.  If  one  party  avails  himself  of  the 
labor  or  services  of  another,  the  law  presumes  he  will  pay 
for  it  what  it  is  worth.  So,  if  one  buys  goods  or  other  thing, 
without  stipulating  its  price,  the  law  assumes  that  he  agrees 
to  pay  to  the  vendor  its  value.  Chitty  on  Contracts,  21-23. 

SEC.  4.  No  contract  is  valid  unless  it  is  founded  on  a 
sufficient  and  lawful  consideration.  A  promise  to  pay,  even 
if  it  be  in  writing,  is  not  binding  on  the  promisor,  unless 
something  is  given  to  or  done  for  the  promisor  as  a  con 
sideration  for  his  promise.  Any  consideration,  however 
trifling,  is  sufficient  in  law  to  prevent  the  agreement  to  pay 
from  being  void.  A  moral  obligation  alone  is  not  sufficient. 
But  if  a  legal  or  equitable  obligation  ever  existed,  though 
it  may  have  become  barred  by  operation  of  law,  as  by  an 
insolvent's  discharge  or  by  the  statute  of  limitation,  a  sub 
sequent  promise  by  the  party,  in  writing,  will  be  sufficient. 
The  consideration  must  be  a  benefit  to  the  party  promising 
or  some  trouble  or  prejudice  to  the  party  to  whom  the 
promise  is  made.  For  instance  :  If  A  promises  B  to  pay 
him  $i  sum  of  money  if  he  will  not  sue  him  within  a  given 
time,  on  a  claim  justly  due  to  B,  the  promise  is  good.  So 
also  is  a  promise  to  pay  a  compensation  for  any  damage  or 
forbearance  for  a  certain  length  of  time.  Chitty  on  Con 
tracts,  25-27. 

SEC.  5.  A  past  consideration  will  not  support  a  promise 
to  pay,  unless  such  past  consideration  was  performed  at  the 
request  of  the  party  promising ;  but  if  the  consideration  was 
of  a  beneficial  nature  to  the  party  promising,  a  request  may 
be  inferred.  Chitty  on  Contracts,  Sec.  57. 

SEC.  6.  A  promise  made  in  writing,  under  seal,  though 
the  words  ' '  for  value  received "  do  not  appear  in  the  instru 
ment,  implies  a  consideration.  Frank  vs.  Green,  5  Bar.  455. 

SEC.  7.  In  writing,  not  wider  seal — A  promise  in  writing, 
not  under  seal,  does  not  imply  a  consideration,  unless  the 
words  "for  value  received"  are  written  in  the  instrument; 


CONTRACTS   IN   GENERAL.  39 

and  if  suit  be  brought  on  a  promissory  note  in  which  those 
words  are  not  written,  the  consideration  must  be  proved; 
for  unless  there  was  a  consideration  the  promise,  though  in 
writing,  is  void.  In  California,  such  promise,  in  writing,  is 
prima  facie  evidence  of  consideration.  •  Stewart  vs.  Street,  10 
Cal.  372. 

SEC.  8.  In  writing,  under  seal — It  has  been  decided  in 
New  York  (16  Wend.  460)  that  if  a  promise  to  pay  money 
be  written,  and  under  seal,  and  in  that  written  promise  the 
words  ' '  value  received  "  consideration  is  expressed  in  the  in 
strument,  the  party  giving  the  promise  is  estopped  by  the 
seal  from  denying  the  consideration.  16  Wend.  460. 

SEC.  9.  Considerations  (living  validity  to  contracts  are  re 
ducible  to  three  heads :  1st.  When  the  parties  mutually  agree 
to  give  something.  This  comprehends  sales,  exchanges, 
loans  and  the  like.  2d.  Where  the  parties  mutually  agree 
to  do  or  forbear  to  do  something,  as  in  consideration  that 
if  you  will  drive  my  cart,  I  will  reap  your  grain ;  or,  in  con 
sideration  that  you  will  not  open  a  hotel  in  such  a  place,  so 
as  to  interfere  with  A's  hotel,  /  will  not  keep  open  ray  store 
at  this  other  place  so  as  to  interfere  with  B's  store.  3d. 
Where  parties  mutually  agree,  the  one  to  perform  work  or 
transact  any  particular  business  for  the  other,  if  that  other 
will  give'  him  something  for  it :  as,  if  one  agrees  to  work  by 
the  month,  at  a  particular  price  per  month  ;  or  if  no  partic 
ular  compensation  be  agreed  on  by  the  parties,  the  law  im 
plies  that  the  laborer  shall  receive  as  much  as  his  work  was 
reasonably  worth,  to  be  left  to  the  determination  of  the  jus 
tice  trying  the  cause,  or  to  a  jury,  to  find  its  value.  Chitty 
on  Contracts,  27-29 ;  Cowen's  Treatise,  42. 

SEC.  10.  Contracts  are  either  express  or  implied.  Express 
contracts,  are  when  all  the  terms  are  fixed  and  agreed  to  by 
the  parties,  either  in  writing  or  orally.  Implied  contracts, 
are  such  as  have  not  been  distinctly  fixed  by  the  parties. 
And  where  the  acts  of  the  parties  justify  such  an  inference, 
as  if  a  parent  shall  unlawfully  force  his  infant  child  into  the 
street,  and  another  shall  take  it  to  his  house  and  nurture  it, 
the  law  infers  a  contract  on  the  part  of  the  parent  to  pay  as 
much  as  such  care  was  reasonably  worth.  Abbott  vs.  Her- 
mon,  7  Greenl.  118. 


40  JUSTICES'  TREATISE. 

SEC.  11.  Express  contracts  may  be  made  by  all  persons 
not  incompetent  by  personal  disability  or  by  considerations 
of  public  policy.  Idiots,  lunatics,  persons  of  unsound  mind, 
and  persons  so  intoxicated,  as  to  be  devoid  of  ability  to  men 
tally  comprehend  the  terms  of  a  contract,  cannot  make  a 
contract  by  reason  of  personal  disability.  Alien  enemies, 
infants,  and,  with  certain  exceptions,  married  women  cannot 
contract  by  reason  of  public  policy.  Chitty  on  Contracts, 
131-133. 

SEC.  12.  Idiots  and  lunatics,  though  not  liable  upon  an 
express  contract,  are  nevertheless  responsible  for  necessa 
ries  furnished  them.  Lunatics  are  liable  for  articles  pur 
chased  by  them,  before  their  lunacy  has  been  legally  estab 
lished  by  a  commission :  provided,  the  party  furnishing  the 
articles  was  not  at  the  time,  aware  of  the  fact  of  their  luna 
cy.  They  are  at  any  time  answerable  in  damages  by  them 
committed  upon  another  whether  before  or  after  their  con 
dition  of  mind  is  ascertained  by  a  proper  commission. 
When  an  idiot  is  sued  for  necessaries  furnished  him,  the 
justice  should  appoint  some  person  to  act  as  committee  for 
him  and  assist  in  his  defense.  A  lunatic  or  idiot,  who  has 
lucid  intervals,  may  make  binding  contracts,  but  it  is  oblig 
atory  on  the  plaintiff  to  prove,  in  a  suit  against  him,  that  his 
intellect  was  unclouded  and  clear  when  he  made  the  con 
tract.  Weakness  of  understanding  will  not,  of  itself,  avoid 
a  contract,  yet  courts  should  be  very  jealous  of  the  rights  of 
such  persons  to  see  that  no  fraud  or  imposition  has  been 
practiced  upon  them ;  and  if  it  can  be  shown  that  undue  and 
improper  advantages  have  been  taken  in  the  contract,  a  court 
of  law  will  avoid  the  contract  for  fraud.  Shelf  on  Lunacy, 
395;  24  Wardel,  85;  1  Hill,  97;  4  Cow.  207. 

SEC.  13.  Lunatic — Where  it  has  been  ascertained  by  an 
inquisition  taken  before  the  county  judge  and  two  graduate 
physicians,  that  a  person  is  a  lunatic;  or  where  after  legal 
notice  and  proper  evidence  it  shall  appear  to  the  probate 
judge  of  the  county,  that  a  person  is  of  unsound  mind  from 
any  cause,  whether  from  lunacy,  natural  idiocy  or  extreme 
old  age,  it  is  made  the  duty  of  the  probate  judge  to  appoint 
a  suitable  person  to  take  charge  of  his  person  and  property; 
and  all  contracts  pertaining  to  the  interests  of  said  person 


CONTRACTS  IN  GENERAL.  41 

must  be  made  by  and  through  such  appointee.  Coiveiis 
Treatise,  43;  15  Johns.  503. 

SEC.  14.  Alien  enemies,  or  citizens  of  a  foreign  country 
with  whom  our  country  is  at  war.  Their  contracts  are  void, 
unless  they  reside  at  the  time  in  this  country;  if  residents, 
their  contracts  are  valid,  though  they  owe  allegiance  to  the 
enemy.  1  Kent's  Com.  66,  69;  Story  on  Cont.  Sec.  34. 

SEC.  15.  Infants  cannot  make  an  express  contract  so  as  to 
bind  themselves.  Their  contracts  are  not  absolutely  void, 
but  voidable  at  their  election.  If  an  infant  make  a  contract 
with  an  adult,  the  adult  is  bound,  unless  the  infant  or  his 
guardian  chose  to  regard  it  as  a  nullity.  They  are  bound  on 
implied  contracts  for  necessaries,  suited  to  their  condition, 
such  as  board,  clothing  and  tuition;  and  if  an  infant  have 
a  family,  he  is  bound  for  necessaries  for  his  family.  An  in 
fant  can  only  be  bound  to  pay  the  actual  value  of  necessa 
ries  furnished,  even  if  he  promised  to  pay  more.  To  recov 
er  on  a  contract  with  an  infant,  it  must  be  proved  that  the 
subject  of  contract  was  necessary,  its  actual  value  and  that 
it  was  really  furnished.  An  infant  is  not  liable  for  a  breach 
of  promise,  but  may  enforce  a  promise  against  an  adult. 
He  is  not  bound  for  money  lent  him  to  purchase  necessa 
ries  ;  nor  can  he  bind  himself  on  a  promissory  note,  bill  of 
exchange,  balance  on  a  settlement  or  a  written  contract. 
He  can  bring  an  action  for  an  injury  or  upon  contract,  yet 
if  he  settles  it,  the  settlement  does  not  bind  him,  because 
he  cannot  contract;  but  if  he  should  receive  anything  in  set 
tlement  for  injuries,  it  may  be  proved  in  mitigation  of  dam 
ages.  After  an  infant  becomes  of  age,  he  may  confirm  a 
contract  made  during  minority  and  bind  himself  to  perform 
it,  but  he  must  do  it  by  a  distinct  promise,  in  writing.  3 
ll'vnd.  479;  Cotven's  Treatise,  45;  Com.  on  Cont.  157. 

SEC.  16.  Policy — Any  contract  which  contravenes  the 
policy  of  the  common  law,  or  is  in  violation  of  a  statute,  is 
void — the  consideration  of  all  contracts  must  be  lawful.  It  is  a 
good  defense  to  any  contract  to  show  that  the  consideration 
was  illegal.  Even  if  it  be  in  writing  or  under  seal,  not 
withstanding  the  general  rule  that  parol  evidence  cannot 
be  admitted,  to  contradict,  add  to  or  vary,  the  provisions  of 
a  written  instrument,  the  consideration  may  be  shown  to  be 
6 


42  JUSTICES'  TREATISE. 

illegal  by  parol  evidence,  if  plead  in  defense.  It  must,  how 
ever,  be  remembered,  that  the  presumptions  of  law  are  in 
favor  of  agreements,  and  when  the  instrument  admits  of  two 
interpretations,  one  of  which  is  in  favor  of  its  legality,  and 
the  other  opposed  to  it,  that  which  is  in  favor  of  it  will  be 
preferred.  In  all  cases,  the  illegality  must  be  distinctly 
shown.  Bingliam  on  Infancy,  Bennett's  Edition;  Cliitty  on 
Cont.  513,  514. 

SEC.  17.  Although  a  contract  based  upon  a  consideration 
which  is  illegal,  is  void,  yet  a  contract  to  indemnify  one 
against  injuries  sustained  by  an  unlawful  act  already  done, 
is  valid.  A  contract  with  a  man.  to  engage  in  a  fight  is  ille 
gal,  yet  if  two  men  have  fought,  and  one  sustains  an  injury, 
for  which  the  other  contracts  to  pay  him  a  sum  of  money  as 
an  indemnity  for  the  injury  inflicted,  such  contract  is  valid. 
Contracts  to  pay  for  past  seduction  or  past  cohabitation, 
are  valid,  being  intended  to  redress  the  injury  already  suf 
fered.  Pothier  on  Oblig.,  note,  43-45. 

SEC.  18.  It  is  against  public  policy  to  contract  in  restraint 
of  marriage  or  in  restraint  of  trade,  and  such  contracts  are 
void  because  against  the  policy  of  the  law.  Contracts  in 
restraint  of  trade  are  against  public  policy,  yet 'if  a  contract 
to  restrain  trade  is  confined  to  a  particular  kind  of  trade,  at 
"a  particular  place  and  of  limited  extent,  it  forms  an  excep 
tion  ;  because  though  it  imposes  a  restraint  on  one  party,  it 
is  beneficial  to  the  other.  Coweris  Treatise,  481.- 

It  is  to  be  remembered  that  if  a  contract  or  agreement  be 
entered  into  by  parties  resident  at  the  time  elsewhere  than 
in  the  state  of  California,  and  the  contract  was  lawful  in  the 
state  where  it  was  made,  that  contract  will  be  enforced. 
This  is  upon  the  principle  that  the  laws  of  the  place  where 
the  contract  was  made,  govern  the  parties  to  it  wherever 
they  may  afterwards  go.  Coweris  Treatise,  220. 

SEC.  19.  Imprisonment  or  duress — A  party  is  not  bound 
by  a  contract  or  promise  to  pay  money,  which  he  has  been 
forced  to  enter  into  by  duress  of  imprisonment  or  of  threats. 
Free  consent,  and  ability  to  consent  or  refuse,  is  equally 
necessary  to  the  validity  of  a  contract.  Duress  by  impris 
onment,  makes  void  all  contracts,  however  good  the  consid 
eration  would  otherwise  be.  If,  however,  the  imprisonment 


CONTEACTS  IN  GENERAL.  43 

be  lawful,  the  contract  will  be  valid,  unless  such  undue  influ 
ence  or  force  is  used,  as  may  be  supposed  by  the  court 
would  overcome  a  man  of  ordinary  firmness.  Duress  by 
threats,  is  where  a  man  is  threatened  with  loss  of  life,  or  of 
limb,  or  mayhem  or  unlawful  imprisonment.  The  threat 
of  an  injury  which  may  be  compensated  in  damages  forms 
an  exception.  6  Mass.  506  ;  Story  on  Cont,  88-90. 

SEC.  20.  J^-awc?— Every  description  of  contract  is  vitiated 
by  fraud  or  deceit  practiced  by  one  of  the  parties  to  it,  and 
may  be  avoided  by  the  party  imposed  on.  A  man  cannot 
avail  himself  even  of  a  statute  to  practice  fraud ;  and  all 
acts,  as  well  judicial  as  others,  which  of  themselves  are 
just  and  lawful,  yet  if  mixed  with  fraud  and  deceit  are,  in 
judgment  of  law,  wrongful  and  unlawful.  For  instance :  If 
a  third  party  should  claim  a  horse,  really  his  own  property, 
and  sue  for  him  and  recover  him  from  one  who  purchased 
him  in  good  faith  as  the  property  of  another ;  if  it  can  be 
shown,  that  he  permitted  his  horse  to  be  sold  that  he  might 
bring  suit  to  recover  him,  the  judgment  can  be  avoided. 
Whenever  a  party  is  induced  in  any  false  manner  to  do  an 
act  which  otherwise  he  would  not  have  done,  he  may  relieve 
himself  by  showing  the  fact.  6  Johns.  110;  12  Johns.  469. 

SEC.  21.  If  two  persons  combine  to  commit  a  fraud,  as 
if  one,  for  a  merely  nominal  consideration  permits  another 
to  take  his  property,  to  save  it  from  seizure  by  his  creditors 
though  void  as  to  the  creditors,  it  is  made  binding  between 
them.  Montgomery  vs.  Hunt,  5  Cal.  368. 

SEC.  22.  Contracts  relating  to  the  sale  or  exchange  of 
property — to  bailments,  and  those  from  which  a  debt  arises 
as  for  work  and  labor,  are  the  most  common.  Cowen's 
Treatise,  58. 

SEC.  23.  A  transmutation  of  property  in  consideration  of 
some  price  or  other  thing,  is  called  sale  or  exchange.  If  A 
offer  B  a  price  for  his  horse  which  B  accepts,  and  in  con 
sideration  thereof  delivers  A  his  horse,  it  is  a  sale.  If  A 
gives  to  B  his  horse  in  consideration  that  B  will  give  to 
him  his  mule,  it  is^an  exchange.  In  either  case,  the  seller  is 
called  the  vendor,  and  the  buyer  is  called  the  vendee.  2 
Denio,  136. 

SEC.  24.     As  between  the  vendor  and  vendee,  the  title  to 


44  JUSTICES'  TKEATISE. 

the  goods  is  changed  when  any  portion  of  the  purchase 
money  is  paid,  or  any  portion  of  the  article  purchased  is  de 
livered,  and  from  and  after  that  time  the  vendor  may  bring 
an  action  for  the  purchase  money,  or  the  vendee  may  recover 
the  goods.  Coweris  Treatise,  58,  59. 

SEC.  25.  When  goods  are  sold  on  a  credit  and  nothing 
is  agreed  upon  as  to  the  time  of  delivering,  the  vendee  is  en 
titled  to  the  immediate  possession,  and  the  right  of  posses 
sion  and  the  title  of  the  property  vest  immediately  in  him. 
But  if,  by  the  contract  of  sale,  any  act  remains  to  be  done 
before  the  terms  of  sale  are  performed,  the  contract  is  not 
compete  until  that  thing  is  done.  Coweris  Treatise,  58,  59. 

SEC.  26.  The  person  in  possession  of  personal  property 
is  deemed  the  owner  of  it,  and  it  is  liable  to  seizure  by  his 
creditors.  A  sale  of  personal  property,  therefore,  to  be  valid 
against  the  claims  of  creditors,  must  be  accompanied  by  an 
actual  and  continued  change  of  possession.  Whitney  vs. 
Stark,  8  Gal.  517. 

SEC.  27.  Where  purchasers  from  a  common  vendor  are 
equally  innocent  or  equally  at  fault,  the  first  purchaser  is 
entitled  to  the  goods.  Vance  vs.  Boynton,  8  Cal.  560. 

SEC.  28.  Contracts  for  the  sale  of  goods,  chattels  or 
things  in  action,  for  the  price  of  two  hundred  dollars  and 
over,  are  void ;  in  other  words,  there  is  no  contract  which 
binds  either  party,  unless :  1st.  A  note  or  memorandum  of 
such  contract  be  made  in  writing  and  be  subscribed  by  the 
parties  to  be  charged  thereby  (or  their  authorized  agent) ; 
or,  2d.  Unless  the  buyer  shall  accept  and  receive  part  of 
such  goods,  or  the  evidences  or  some  of  them,  of  such 
things  in  action ;  or,  3d.  Unless  the  buyer  shall  at  the  time 
pay  some  part  of  the  purchase  money.  Public  Laws,  Hit- 
tell,  3157,  Sec.  13. 

SEC.  29.  Contracts  to  deliver  a  thing  at  a  future  day 
which  thing  does  not  yet  exist,  as  for  instance  something  to 
be  made,  are  held  not  to  be  within  the  rule  laid  down  in 
the  proceeding,  but  are  as  contracts  for  work  and  labor.  18 
Johns.  58.  « 

But  when  the  thing  sold  exists,  the  mere  fact  that  some 
thing  is  to  be  done  to  it  before  it  is  delivered,  forms  no  ex 
ception  to  the  rule.  So,  where  a  person  sells  his  wheat  and 


CONTEACTS  IN  GENERAL.  45 

agrees  to  deliver  it  after  it  is  threshed,  must  be  in  writing 
to  be  binding.  23  Wend.  270. 

SEC.  30.  A  note  or  memorandum,  in  writing,  musjt  be 
signed  by  both  parties,  or  by  some  one  for  them  who  has 
authority  so  to  do,  or  they  will  not  be  bound.  26  Wend. 
341. 

It  is  not  sufficient  that  the  names  are  inserted  in  the  body 
of  the  writing,  they  must  be  signed  at  the  bottom  of  it.  If 
the  signing  be  done  by  the  vendor  alone  it  will  bind  him. 
The  following  form  is  sufficient  to  bind  the  vendor : 

JANUABT  31st,  1870. 

I  have  sold  to  B.  one  wagon ^250. 

(Signed)  *A. 

SEC.  31.  An  auctioneer  is  an  agent  for  both  seller  and 
buyer,  and  when  he  knocks  down  the  goods,  the  sale  is  com 
plete.  The  entry  in  his  book  of  sales,  describing  the  nature 
or  kind  of  goods  sold,  their  price  and  the  terms  of  sale,  and 
the  name  of  the  purchaser,  and  the  name  of  the  person  on 
whose  account  the  goods  are  sold,  shall  be  deemed  the  note 
or  memorandum  of  the  contract.  Gen.  Laws,  Hittell,  Sec. 
3158. 

But  the  entry  must  be  made  at  the  time  and  place  of  sale. 
It  is  not  enough  that  a  minute  be  made  at  the  time  of  the 
sums  bid,  and  the  name  of  the  bidder,  although  the  other 
entries  be  made  shortly  after  at  another  place.  12  Wend. 
548. 

SEC.  32.  The  acceptance  of  part  of  the  goods  by  the  pur 
chaser  or  the  delivery  to  him  may  be  either  actual  or  con 
structive,  or  inferred  from  circumstances.  As,  where  they 
are  in  a  house  and  the  key  is  delivered  to  him  ;  or  where 
they  are  in  the  possession  of  a  third  person,  who  has  re 
ceipted  for  them,  and  the  receipt  is  delivered  to  him.  5 
Johns.  335. 

SEC.  33.  An  actual  delivery  is  sometimes  inferred  by  the 
courts.  As,  where  A  sells  to  B  a  yoke  of  oxen,  which  are 
distant  from  them  in  a  stable  or  in  a  field;  and  some 
time  after  the  purchase,  there  being  no  money  paid  or  note 
of  the  sale  made,  B  takes  the  oxen  away;  it  was  held,  there 
was  a  delivery,  and  B  was  chargeable  with  the  price.  Or, 
where  horses  are  purchased,  and  the  purchaser  says:  "Here, 


46 


JUSTICES    TREATISE. 


keep  them  for  me,  until  I  can  send  for  them,"  the  taking 
of  the  horses  to  keep  by  the  vendor,  implies  a  previous 
delivery  to  the  purchaser.  1  East.  192;  Coiveris  Treatise, 
Sec.  96. 

SEC.  34.  Property  sold  may  have  been  received  by  the 
purchaser,  and  still  the  sale  is  not  complete :  as,  where  at  an 
auction  sale  for  cash,  the  purchaser  bids  off  an  article;  it' 
is  handed  to  him  by  the  auctioneer  and  the  purchaser  re 
ceives  it,  but  does  not  pay  for  it — in  such  case  the  delivery 
is  said  to  be  conditional,  and  the  title  to  the  property  is  not 
changed.  Coweris  Treatise,  61,  62. 


CHAPTER    IV. 

CONTBACTS    PABTICULABIZED,   WHAT    CONSTI 
TUTES,  ETC. 


SECS. 

WHAT  CONSTITUTES  A  CONTRACT    1-  6 

ASSENT 7-8 

CONSIDERATION 9-19 

CONTRACTS  AGAINST  PUBLIC  POL 
ICY    AND    THOSE     THAT     ARE 

FRAUDULENT 20-37 

EXECUTION  OF  CONTRACT 38^2 

MODIFICATION  OF  CONTRACT  ....  43-45 
ENTIRETY  OF  CONTRACT  ...          .  46-48 


SECS. 

INTERPRETATION  AND  CONSTRUC 
TION  OF 49-56 

SEALED   CONTRACTS 57-60 

CONTRACTS  WITH  THE  STATE.  ...         61 
CONTRACTS  WITH  EXECUTORS  AND 

ADMINISTRATORS 62-63 

CONTRACTS  OF  CORPORATIONS  . .  .  64-70 

RESCISSION  OF  CONTRACT 71-73 

PERFORMANCE  OF  CONTRACT  ...  74-88 


What  Constitutes  a  Contract. 

SECTION  1.  A  contract  is  a  voluntary  agreement  between 
competent  parties,  upon  a  good  consideration,  to  do  or  not 
to  do  some  particular  thing  which  may  be  lawfully  done  or 
omitted;  and  it  makes  no  difference  whether  the  subject 
matter  of  the  contract  be  real  or  personal  estate ;  the  con 
tract  is  still  good  whether  verbal  or  written,  unless  some 
positive  law  provide  otherwise.  10  Gal.  166. 

SEC.  2.  A  contract  is  a  voluntary  and  lawful  agreement, 
by  competent  parties,  for  a  good  consideration,  to  do  or  not 
to  do  a  specified  thing.  The  only  end  and  object  of  the 
contract  is  the  doing  or  the  not  doing  of  the  particular  thing 
mentioned.  The  practical  result  is  the  only  end  aimed  at 
by  the  parties,  and  the  obligation  of  the  contract  is  the  vital 


CONTRACTS  PARTICULARIZED,    WHAT  CONSTITUTES,    ETC.      47 

binding  element  that  secures  this  practical  consummation. 
9  Cal  83. 

SEC.  3.  All  men  are  presumed  to  know  the  law  :  and  the 
law  then  existing  enters  into,  and  forms  a  part  of,  the  con 
tract,  without  any  express  stipulation  to  that  effect.  Parties, 
in  entering  into  contracts,  only  expressly  stipulate  as  to  mat 
ters  that  cannot  appear  without  such  stipulation.  It  would 
be  idle  for  them  to  say,  expressly,  that  they  incorporate  in 
their  agreement  the  law  then  existing.  9  Cal.  84. 

As  the  law  enters  into  the  contract  and  forms  a  part  of  it, 
the  obligation  of  such  contract  must  depend  upon  the  law 
existing  at  the  time  the  contract  was  made.  The  rights  as 
well  as  the  intentions  of  the  parties  are  fixed  and  ascer 
tained  by  the  existing  law.  9  Cal.  84 ;  16  Cal.  32,  33. 

The  obligation  of  a  contract,  consists  in  its  binding  force 
on  the  party  who  makes  it.  This  depends  on  the  laws  in 
existence  when  it  is  made;  these  are  necessarily  referred 
to  in  all  contracts,  and  forming  a  part  of  them  as  the  meas 
ure  of  the  obligation  to  perform  them  by  the  one  party  and 
the  right  acquired  by  the  other.  There  can  be  no  other 
standard  by  which  to  ascertain  the  extent  of  either  than 
that  which  the  terms  of  the  contract  indicate,  according  to 
their  settled  legal  meaning;  when  it  becomes  consummated 
the  law  defines  the  duty  and  the  right,  compels  one  party  to 
perform  the  thing  contracted  for,  and  gives  the  other  a  right 
to  enforce  the  performance  by  the  remedies  then  in  force. 
If  any  subsequent  law  affect  to  diminish  the  duty  or  to  im 
pair  the  right,  it  necessarily  bears  on  the  obligation  of  the 
contract  in  favor  of  one  party  to  the  injury  of  the  other ; 
hence,  any  law  which  in  its  operation  -amounts  to  a  denial 
or  obstruction  of  the  rights  accruing  by  a  contract,  though 
professing  to  act  only  on  the  remedy,  is  directly  obnoxious 
to  the  prohibition  of  the  constitution.  16  Cal.  31,  32. 

The  same  constitutional  inhibition  which  protects  con 
tracts  between  individuals  from  being  impaired  by  the  legis 
lature  extends  to  contracts  between  individuals  and  the  state. 
The  principles  laid  down  in  Fletcher  vs.  Peck  (6  Cranch, 
87),  says  Mr.  Justice  Washington  in  the  opinion  in  Greenvs. 
B'wMe,  from  which  we  have  already  cited,  "are  that  the 
constitution  of  the  United  fj>tates  embraces  all  contracts, 


48  JUSTICES'  TEEATISE. 

executed  or  executory,  whether  between  individuals  or  be 
tween  a  state  and  individuals,  and  that  a  state  has  no  more 
power  to  impair  an  obligation  into  which  she  herself  has 
entered  than  she  can  the  contracts  of  individuals." 

"It  is  immaterial,"  observes  Mr.  Smith,  in  his  Commenta 
ries  on  Statute  and  Constitutional  Law,  "whether  the  con 
tract  be  one  between  a  state  and  an  individual,  or  between 
individuals  only,  the  contracting  parties,  whoever  they  may 
be,  stand  in  this  respect  upon  the  same  ground.  The  obli 
gations  imposed  and  the  rights  acquired  by  virtue  of  the 
contract  cannot  be  impaired  by  a  legislative  act."  Corns. 
Sec.  252;  Providence  Bank  vs.  Billings  et  al.,  4  Peters,  514; 
Dartmouth  College  vs.  Woodward,  4  Wheat.  518  ;  Gh'een  vs. 
Biddle,  8  Wheat.  1;  16  Col.  30. 

SEC.  4.  Where  a  contract  is  made  and  executed  in  pur 
suance  of  a  statute,  which  also  prescribes  the  parties  against 
whom  and  the  mode  in  which  it  may  be  enforced,  the  right 
to  enforce  it  in  the  manner  prescribed  is  a  part  of  the  con 
tract,  and  is  not  affected  by  a  subsequent  act  repealing  the 
provisions  in  reference  to  the  enforcement  of  the  contracts 
authorized  by  the  statute  under  which  it  was  made.  21 
Cat  115. 

SEC.  5.  At  common  law,  all  contracts  by  which  one  obliged 
himself  to  do  an  act  or  omission  tending  to  injure  the  pub 
lic,  were  void,  and  the  general  rule  is  that  contracts  in 
restraint  of  trade  are  contrary  to  public  policy.  The  strin 
gency  of  this  rule  has  been  gradually  relaxed  as  the  reason 
for  it — the  security  of  mechanics  and  tradesmen — ceased. 
6  Cal.  261. 

Thus,  an  agreement  not  to  run  a  stage  coach  on  a  certain 
road  is  valid.  So,  where  a  party  enters  into  a  bond,  under 
a  penalty,  that  he  will  not  at  any  time  thereafter  own,  run 
or  be  interested,  in  any  line  of  boats  on  a  certain  canal,  the 
bond  is  valid.  6  Cal.  261. 

In  these  cases,  the  doctrine  is,  that  there  must  be  not 
only  a  consideration  for  the  contract,  but  there  must  be 
some  good  reason  for  entering  into  it ;  and  it  must  impose 
no  restraint  upon  one  party  which  is  not  beneficial  to  the 
other.  6  Cal.  262. 

A  contract  not  to  run  boats  on  a  certain  line  of  travel  at 


COXTKACTS  PARTICULARIZED,    WHAT   CONSTITUTES,    ETC.      49 

any  time  within  three  years  from  the  date  of  the  contract 
and  on  failure  to  comply  with  the  contract  to  pay  a  specified 
sum  of  money,  is  not  void,  as  being  against  public  policy 
and  in  restraint  of  trade,  where  a  consideration  is  paid 
therefor.  6  Cal.  262. 

Such  a  contract  is  no  monopoly,  because  it  only  licenses 
a  party  in  the  exclusive  enjoyment  of  his  business  as  against 
a  single  individual,  while  all  the  world  besides  are  left  at 
full  liberty  to  enter  upon  the  same  enterprise.  6  Cal.  262. 

SEC.  6.  A  judgment  is  a  contract  in  the  highest  sense  of 
the  term,  and  the  word  "contract,"  as  used  in  the  amend 
ment  to  the  civil  practice  act,  providing  for  the  rendition 
of  judgment  payable  in  the  kind  of  money  specified  in  the 
contract,  includes  judgments.  6  Cal.  372 ;  27  Cal.  498.  • 

Assent 

SEC.  7.  If  A  promises  B  to  pay  him  a  sum  of  money,  if 
he  will  do  a  particular  act,  the  promise  thereupon  becomes 
binding,  although  B  at  the  time  of  the  promise  does  not 
engage  to  do  the  act. .  22  Cal.  86. 

SEC.  8.  Contract  to  pay  for  goods  furnished  another : 
S  contracted  in  writing  with  W  to  run  a  tunnel  towards  a 
quartz  ledge,  and  agreed  if  W  could  not  reach  the  ledge 
he  would  pay  "W  the  expense  he  incurred  for  provisions. 
S  then  told  V  that  if  he  would  furnish  W  with  provisions 
he  would  pay  for  them  if  "W  did  not  reach  the  ledge :  Held, 
that  S  was  liable  to  V  for  provisions  thus  furnished  to  W. 
36  Cal.  571. 

Consideration. 

SEC.  9.  There  is  a  settled  legal  definition  of  the  different 
kinds  of  consideration.  A  good  consideration,  is  such  as 
that  of  blood  or  of  natural  affection.  A  valuable  considera 
tion,  is  such  as  money  or  the  like.  Deeds  made  upon  a 
good  consideration  only  are  considered  as  merely  voluntary, 
and  are  frequently  set  aside  in  favor  of  creditors  and  bona 
fide  purchasers.  When  the  statute  speaks  of  a  purchaser 
"in  good  faith  and  for  a  valuable  consideration,"  there  is  no 
reason  to  suppose  it  was  intended  to  employ  these  terms  in 
this  connection  as  a  tautologous  expression.  The  intent  is 
that  the  purchase  must  not  onlv  be  in  good  faith,  but  it 
7 


50  JUSTICES'  TREATISE. 

must  be  founded  on  a  valuable  consideration,  as  distin 
guished  from  a  merely  good  consideration.  In  other  words, 
that  a  voluntary  deed,  although  taken  in  good  faith  and  first 
recorded,  will  not  have  preference  over  a  prior  deed.  The 
mode  in  which  the  terms  are  connected  indicates  the  intent 
with  which  the  latter  was  used.  In  good  faith  and  for  a 
valuable  consideration.  The  inadequacy  of  price  is  a  cir 
cumstance  proper  to  be  considered  in  determining  the  ques 
tion  of  good  faith,  but  it  will  not  the  less  fall  within  the 
legal  definition  of  a  valuable  consideration,  however  dispro- 
portioned  it  may  be  to  the  value  of  the  land.  20  Cal.  224. 

SEC.  10.  In  order  to  constitute  a  consideration,  it  is  nec 
essary  that  some  advantage  to  promisor,  or  injury  to  promi- 
see^the  degree  not  material — should  occur.  A  past  and  ex 
ecuted  consideration  is  not  sufficient.  If  the  debt  of  A 
already  has  been  created,  the  mere  promise  to  pay  it  by  B — 
no  term  being  introduced  into  the  contract — as  delay  or  the 
like,  is  not  binding.  -  It  is  a  mere  undertaking  to  pay  an 
other's  debt,  and  it  is  within  the  statute  of  frauds,  and  with 
out  the  statute  would  be  void,  as  without  consideration.  12 
Gal.  288,  289. 

SEC.  11.  Paying  part  of  a  note  when  all  is  due,  is  no  con 
sideration  for  an  agreement  to  extend  the  time  of  payment. 
13  Cal.  598. 

SEC.  12.  A  written  contract  to  pay  more  than  ten  per 
cent,  per  annum  as  interest,  on  an  indebtedness  incurred 
prior  to  the  contract,  is  void  for  want  of  consideration  as  to 
the  excess  of  interest  up  to  the  date  of  the  contract.  6  Cal. 
126. 

The  indebtedness,  being  only  for  the  principal  and  legal 
interest,  is  not  sufficient  to  support  a  contract  to  pay  a 
greater  amount  than  was  due.  It  is  a  voluntary  undertak 
ing,  and  cannot  be  enforced  6  Cal.  126. 

But  a  contract  to  pay  in  future  a  greater  than  legal  interest 
on  an  existing  indebtedness  is  binding,  the  forbearance  of 
the  creditor  being  a  sufficient  consideration.  6  Cal.  126. 

SEC.  13.  An  agreement  between  a  debtor  and  a  single 
creditor  for  the  acceptance  by  the  latter  of  an  amount  less 
than  the  debt  in  satisfaction,  is  invalid  for  want  of  consider 
ation;  but  such  an  agreement  between  a  debtor  and  two  or 


CONTRACTS  PARTICULARIZED,    WHAT  CONSTITUTES,    ETC.      51 

more  creditors  is  valid,  the  engagement  of  one  being  a  suf 
ficient  consideration  for  that  of  the  others.  21  Cal.  122. 

SEC.  14.  A  contract,  purporting  to  be  between  several 
parties,  containing  mutual  covenants,  of  which  those  of  one 
party  are  the  consideration  of  those  of  the  others,  must,  to 
be  valid,  be  executed  by  all,  and  cannot  be  enforced  against 
one  executing,  by  another  who  fails  to  execute.  21  Cal.  60. 

Cases,  in  which  instruments  have  been  held  inoperative, 
when  not  executed  by  all  the  parties,  are  cases  in  which, 
from  the  terms  of  the  instrument  or  from  the  nature  of 
the  subject  matter  of  the  contract,  it  appeared  that  it  was 
the  intention  of  the  partie  swho  signed  to  be  bound,  with 
out  reference  to  an  execution  by  all  the  parties,  or  where, 
by  acting  under  it  with  a  knowledge  that  it  had  not  been 
fully  executed,  the  parties  had  become  estopped  from  deny 
ing  its  obligation  upon  them.  21  Cal.  69. 

If  A  promises  B  to  pay  him  a  sum  of  money  if  he  will 
do  a  particular  act,  and  B  does  the  act,  the  promise  there 
upon  becomes  binding,  although  B,  at  the  time  of  the  prom 
ise,  does  not  engage  to  do  the  act.  '  In  the  intermediate 
time  the  obligation  of  the  contract  or  promise  is  suspended; 
for,  until  the  performance  of  the  condition  of  the  promise, 
there  is  no  consideration,  and  the  promise  is  nudum  pactum ; 
but  on  the  performance  of  the  condition  of  the  promise,  it 
is  clothed  with  a  valid  consideration  which  relates  back  to 
the  promise,  and  it  then  becomes  obligatory.  22  Cal.  93,  94. 

SEC.  15.  An  express  promise  can  only  revive  a  precedent 
good  consideration,  which  might  have  been  enforced  at  law, 
through  the  medium  of  an  implied  promise,  had  it  not  been 
suspended  by  some  positive  rule  of  law,  but  can  give  no 
original  right  of  action,  if  the  obligation  on  which  it  is 
founded  never  could  have  been  enforced  at  law,  though  not 
barred  by  any  legal  maxim  or  statute  provision.,  2  Cal.  581. 

SEC.  16.  In  an  action  for  personal  services,  defendants 
asked  an  instruction  to  the  effect  that  if  the  plaintiff  served 
the  defendant  upon  an  understanding  that  he  was  to  have 
only  his  living — board,  washing,  lodging,  etc. — as  a  com 
pensation,  and  that  he  had  received  these,  then  defendant 
should  recover,  which  instruction  the  court  refused :  it  was 
held,  that  the  instruction  was  proper,  and  that  for  the  error 


52  JUSTICES'  TREATISE. 

in  refusing  it  the  judgment  for  plaintiff  must  be  reversed. 
22  Cat.  509. 

SEC.  17.  Where  services  are  rendered  upon  an  under 
standing  that  the  remuneration  is  to  be  at  the  entire  discre 
tion  of  the  employer,  no  action  is  maintainable.  If  services 
are  rendered  in  expectation  of  a  legacy,  without  any  con 
tract,  no  action  can  be  maintained  for  them.  22  Cat.  510. 

SEC.  18.  Where  services  were  originally  rendered  gra 
tuitously,  they  cannot  afterwards  be  converted  into  a  charge. 
A  court  will  not  permit  a  friendly  act,  or  such  as  was  intend 
ed  to  be  an  act  of  kindness  or  benevolence,  to  be  afterwards 
converted  into  a  pecuniary  demand.  Where  one  works  for 
another,  the  law  in  general  implies  a  promise  to  pay  what 
the  work  is  worth,  but  that  implication  does  not  arise  in 
favor  of  a  son  who  continues  with  his  father's  family  after 
he  attains  his  majority,  without  agreement  for  his  wages; 
nor  in  favor  of  a  man  who  marries  a  daughter,  and  lives  with 
her  in  his  father-in-law's  family;  or  in  favor  of  a  daughter 
who  thus  remains  with  her  parents,  or  those  who  stand  in 
place  of  her  parents.  As  a  general  rule,  she  would  be  con 
sidered  as  a  visitor,  not  entitled  to  pay  for  her  services,  or 
liable  to  pay  for  her  board.  So,  a  woman  who  has  lived  with 
a  man  as  his  wife,  supposing  herself  to  be  such,  cannot,  on 
discovering  that  the  marriage  between  them  was  void,  re 
cover  for  her  services,  upon  an  implied  promise.  When 
work  is  done  by  one  for  the  benefit  of  another,  with  his 
knowledge  or  approbation,  the  law  will  imply  a  promise  to 
pay  for  it,  unless  it  appear  that  there  was  an  understanding 
that  no  compensation  should  be  given;  but  where  there  is 
such  an  understanding,  the  law  will  not  imply  a  promise, 
and  such  understanding  may  be  implied  from  circumstances. 
22  Cal  510,  511. 

SEC.  19.  The  law  imports  a  consideration  to  a  sealed  in 
strument  from  its  seal.  At  common  law,  a  party  was  not 
permitted  to  plead  a  want  of  consideration  as  a  defense  to 
an  action  upon  a  sealed  instrument — the  presumption  of  the 
existence  of  a  consideration  being  absolute  and  conclusive. 
The  statute  of  this  state  has  modified  the  rule  in  this  respect 
so  far  as  to  permit  the  want  of  consideration  to  be  plead 
ed.  It  has  not,  however,  altered  the  presumption  which 


CONTRACTS  PARTICULARIZED,    WHAT  CONSTITUTES,    ETC.      53 

still  accompanies  the  instrument,  but  allows  it  to  be  rebut 
ted  in  the  answer.     10  Col.  463,  464. 

Contracts  against  Public  Policy. 

SEC.  20.  If  the  purchaser  of  a  steamboat,  at  the  time  of 
the  purchase,  covenants  with  the  seller  that  he  will  not  run 
or  employ  or  suffer  to  run  or  be  employed,  the  said  boat 
for  ten  years,  upon  any  of  the  routes  of  travel  of  the  waters 
of  a  state,  the  covenant,  being  in  restraint  of  trade  and  com 
merce,  is  void,  as  against  public  policy.  36  Cat.  342. 

SEC.  21.  A  verbal  agreement  to  indemnify  a  sheriff  for 
seizing  certain  property,  under  an  execution  in  favor  of  the 
obligor,  is  valid,  especially  where  the  sheriff  appears  to  have 
acted  in  good  faith,  and  with  no  other  view  than  that  of 
obtaining  satisfaction  of  the  execution  out  of  the  property 
of  the  judgment  debtor;  and  the  act  committed  amounted 
simply  to  an  unintentional  wrong.  In  the  case  of  a  willful 
trespass,  an  agreement  of  this  character  would  be  in  contra 
vention  of  public  policy,  and  ought  not  to  be  enforced;  but 
where  there  is  nothing  willful  in  the  trespass,  there  is  no 
reason  why  effect  should  not  be  given  to  the  agreement. 
The  rule  is,  that  where  the  intention  is  to  commit  a  tres 
pass,  the  agreement  will  be  void,  but  that  where  the  object 
is  to  enforce  a  legal  right,  and  the  parties  are  actuated  by 
no  improper  motive,  the  agreement  will  be  valid  "If,"  said 
the  court  of  appeals  of  South  Carolina,  in  Jameison  vs.  Cal- 
houn  (2  Speers,  19),  "one  man  promise  another  to  indemnify 
him  for  committing  a  crime,  a  misdemeanor,  or  a  willful 
trespass,  such  promise  is  void;  but  this  has  never  been  sup 
posed  to  extend  to  cases  where  the  alleged  trespass  has  been 
committed  in  prosecution  of  a  legal  right,  unless  the  legal 
right  be  merely  pretensive."  See,  also,  Crocker  on  Sheriffs, 
319. 

Neither  is  the  agreement  invalid  for  want  of  a  compliance 
with  the  statute  of  frauds.  It  was  not  a  "special  promise  to 
answer  for  the  debt,  default  or  miscarriage  of  another," 
within  the  meaning  of  the  statute.  The  plaintiff  was  not 
acting  for  himself,  but  as  the  agent  of  the  defendant,  and 
the  promise  was  to  be  responsible  for  the  consequences  of 
his  acts  in  that  capacity. 


54  JUSTICES'  TKEATISE. 

The  plaintiff  was  entitled  to  recover  the  costs  incurred  by 
him  in  defending  the  suit  brought  for  the  value  of  the  prop 
erty.  His  claim  to  indemnity  extended  to  the  entire  dam 
ages  to  which  he  had  been  subjected  on  account  of  the  seiz 
ure.  18  Cat.  624,  625. 

SEC.  22.  Any  agreement  respecting  government  contracts 
to  be  awarded  to  the  lowest  bidder,  which  tends  to  deprive 
the  government  of  the  advantage  of  competition  in  the  bid 
ding,  is  unlawful  and  void.  ffl'Cal.  182. 

An  agreement  not  to  bid  upon  a  contract  which  is  to  be 
awarded  to  the  lowest  bidder,  and  an  agreement  to  with 
draw  a  bid  already  made,  are  obnoxious  to  the  same  legal 
objections.  20  Cal  182. 

SEC.  23.  S  having  put  in  a  bid  for  carrying  the  mails  over 
a  certain  route,  agreed  with  C  to  withdraw  his  bid,  and  use 
his  influence  to  induce  the  government  to  give  to  C  a  con 
tract  for  a  longer  route,  including  the  one  bid  upon,  on  con 
sideration  that  if  C  obtained  the  contract,  S  should  have  an 
interest  in  it,  or  be  paid  an  equivalent  pecuniary  compensa 
tion  :  Held,  that  the  contract  was  void  as  against  public  pol 
icy.  20  Cal.  182. 

SEC.  24.  Any  contract  by  a  public  officer,  which  inter 
feres  with  the  unbiased  discharge  of  his  duty  to  the  public 
in  the  exercise  ot  his  office,  is  against  public  policy  and 
void.  22  Cal  336. 

SEC.  25.  A  postmaster  is  a  public  officer,  and  in  the  dis 
charge  of  his  trust  is  bound  to  exercise  his  judgment  for  tha 
public  benefit  in  fixing  the  location  of  his  office;  and  any 
contract  by  which  this  exercise  of  his  judgment  is  sold  for 
his  private  emolument,  interferes  with  the  discharge  of  his 
official  duties,  and  is  therefore  void.  22  Cal.  336. 

The  question  of  the  validity  of  a  contract  of  a  public  offi 
cer,  does  not  depend  upon  the  circumstance  whether  it  can 
be  shown  that  the  public  has  in  fact  suffered  any  detriment, 
but  whether  the  contract  is  such  in  its  nature  as  might  have 
been  injurious  to  the  public  interest.  22  Cal.  336. 

The  plaintiff,  in  expectation  of  receiving  a  commission 
as  postmaster,  entered  into  an  agreement  with  defendants, 
whereby  they  leased  to  him  certain  premises  for  the  term  of 
one  year,  with  the  right  on  his  part  to  extend  the  terms  so 


CONTRACTS  PARTICULARIZED,    WHAT  CONSTITUTES,    ETC.      55 

• 

long  as  he  should  remain  postmaster,  not  exceeding  four 
years,  in  consideration  of  the  sum  of  one  dollar  per  year, 
and  a  covenant  on  his  part,  that  as  soon  as  he  received  his 
commission,  he  would  remove  the  post-office  to  the  leased 
premises,  and  continue  the  same  there  for  all  the  time  that 
he  should  hold  the  office:  Held,  that  in  an  action  for  the 
breach  of  this  contract  by  defendant,  it  contravened  public 
policy  and  was  void.  22  Gal  336,  337. 

If,  in  order  to  secure  a  fit  location  for  an  office,  it  should 
be  necessary- for  a  postmaster  to  agree  to  locate  and  con 
tinue  it  at  a  particular  place,  a  contract  to  that  effect  might 
be  valid,  but  to  maintain  an  action  thereon,  such  necessity 
would  be  required  to  be  affirmatively  shown.  22  Col.  337. 

SEC.  26.  "Public  policy"  is  a  vague  expression,  and  few 
cases  can  arise  in  which  its  application  may  not  be  disputed. 
Mr.  Story,  in  his  wrork  on'  Contracts  (Sec.  546),  says:  "It 
has  never  been  defined  by  the  courts,  but  has  been  left  loose 
and  free  of  definition,  in  the  same  manner  as  fraud.  This 
rule  may,  howrever,  be  safely  laid  down,  that  wherever  any 
contract  conflicts  with  the  morals  of  the  time  and  contra 
venes  any  established  interest  of  society,  it  is  void,  as  being 
against  public  policy."  In  illustration  of  this  rule,  he  says 
(Sec.  576):  "Where,  therefore,  a  person  occupying  a  pub 
lic  office  agrees,  for  a  reward,  to  exercise  his  official  influ 
ence  in  questions  affecting  both  public  and  private  rights 
so  as  to  bring  about  the  private  advantage  of  persons  inter 
ested,  the  contract  would  be  void.  For  every  public  officer 
is  bound  to  be  disinterested  in  the  consideration  of  all  pub 
lic  questions,  and  any  contract  which  interferes  with  the 
free  and  unbiased  exercise  of  his  judgment  in  relation  to  a 
question  of  trust  and  confidence  reposed  in  him,  is  against 
public  policy  and  good  morals."  *  Again  (Sec.  577):  Con 
tracts  for  the  sale  of  public  offices  come  under  the  class  of 
contracts  in  violation  of  public  duty,  and  are  void.  And 
this  rule  obtains  upon  the  ground  that  they  tend  to  destroy 
the  responsibilities  Of  the  office,  and  to  betray  the  interests 
of  the  public."  "So,  also,  the  profits  and  emoluments  of 
a  public  office  of  trust  are  not  a  good  subject  of  sale.  Thus, 
it  has  been  held  that  the  prize  money  of  a  sailor,  or  the  full 
pay  or  half  pay  of  an  officer  is  not  assignable  at  law,  nor  in 


56  JUSTICES'  TEEATISE. 

equity,  upon  the  ground  that  any  salary  paid  for  the  per 
formance  of  a  public  duty  ought  not  to  be  perverted  to 
other  uses  than  those  for  which  it  was  intended."  These 
citations  are  made,  not  as  referring  to  cases  of  the  same 
exact  character  as  the  one  before  us,  but  as  illustrating  the 
general  principle — which  is,  that  any  contract  by  a  public 
officer  which  interferes  with  the  unbiased  discharge  of  his 
duty  to  the  public  in  the  exercise  of  his  office,  is  against 
public  policy,  and  is  void. 

The  case  of  Fuller  vs.  Dame  (18  Pick.  472),  is  pertinent. 
In  this  case  it  appears  that  Fuller  was  a  stockholder  in  the 
Boston  and  Worcester  Eailroad  Corporation,  and  for  a  con 
sideration  he  agreed  to  use  his  influence  in  procuring  that 
corporation  to  locate  its  depot  at  a  particular  place  in  Bos 
ton,  it  being  expressed  in  the  agreement  that  Fuller  was  of 
opinion  that  the  road  ought,  from  a  view  to  the  public  good 
and  the  good  of  the  stockholders,  to  locate  its  depot  at  that 
place.  The  contract  was  held  to  be  void  on  the  ground  that 
the  road  was  established  for  the  public  accommodation, 
although  a  private  corporation,  and  that  the  public  had  an 
interest  in  the  question  of  the  location  of  the  depot,  and 
though  the  contract  was  not  made  to  induce  a  party  to  do 
an  unlawful  act,  it  put  him  under  an  influence  to  do  that 
which  might  injuriously  affect  the  interests  of  the  public, 
and  the  court  say:  "Nor  is  it  any  satisfactory  answer  to 
say,  that  when  the  agreement  was  entered  into  he  had  come 
to  the  opinion  that  the  location  in  question  was  the  best 
for  the  interests  of  the  public  and  for  the  interests  of  the 
corporation.  That  opinion  might  be  changed  by  new  views 
and  new  offers;  and  besides,  the  terms  upon  which  this 
boon  was  to  be  obtained  was  still  an  open  question.  But 
upon  all  these  questions  the  influence  of  the  promise  of 
separate  and  distinct  advantage  deprived  him  of  the  power 
of  exercising  a  free,  disinterested  and  unbiased,  judgment." 
22  Cal  340-342. 

SEC.  27.  If  any  part  of  the  consideration  of  an  agree 
ment  be  void  as  against  public  policy,  the  whole  contract 
fails.  This  is  well  settled.  See  1  Parsons  on  Contracts,  380. 

It  is  equally  well  settled  that  courts  of  equity  will  never 
enforce  any  such  contract.  Corny ns  on  Contracts,  53. 


CONTRACTS  PARTICULARIZED,    WHAT   CONSTITUTES,    ETC.      57 

So,  if  A  promise  B  money  in  consideration  that  lie  will 
not  give  evidence  in  a  suit  pending,  such  promise  cannot  be 
enforced,  it  being  unlawful  for  any  man  to  suppress  evidence 
in  any  case.  Comyns  on  Contracts,  63. 

The  ground  upon  which  courts  proceed  in  cases  of  this 
sort  is  well  stated  by  Mr.  Justice  Baldwin  in  the  case  of 
Bartle  vs.  Coleman  (4  Peters,  184). 

The  strong  language  of  this  case  is  but  an  elaboration  of 
the  principle  asserted  in  the  case  of  Holman  vs.  Johnson,  (3 
Cowp.  343). 

Lord  Mansfield  there  says:  "The  objection  that  a  con 
tract  is  immoral  or  illegal  as  between  plaintiff  and  defend 
ant,  sounds  at  all  times  very  ill  in  the  mouth  of  the  defendant. 
It  is  not  for  his  sake,  however,  that  the  objection  is  ever 
allowed;  but  it  is  founded  in  general  principles  of  policy, 
which  the  defendant  has  the  advantage  of,  contrary  to  the 
real  justice,  as  between  him  and  the  plaintiff,  by  accident, 
if  I  may  say  so.  The  principle  of  public  policy  is  this,  ex 
dolo  malo  non  oritur  actio.  No  court  will  lend  its  aid  to  a 
man  who  founds  his  cause  of  action  upon  an  immoral  or  an 
illegal  act.  If,  from  the  plaintiff 's  own  stating  or  otherwise, 
the  cause  of  action  appears  to  arise,  ex  turpi  causa,  or  the 
transgression  of  a  positive  law  of  this  country,  there  the 
court  says  he  has  no  right  to  be  assisted.  It  is  upon  that 
ground  the  court  goes,  not  for  the  sake  of  the  defendant, 
but  because  they  will  not  lend  their  aid  to  such  a  plaintiff. 
So,  if  the  plaintiff  and  defendant  were  to  change  sides,  and 
the  defendant  was  to  bring  his  action  against  the  plaintiff, 
the  latter  would  then  have  the  advantage  of  it;  for  where 
both  are  equally  in  fault,  potior  est  conditio  defendentis." 

The  authorities  and  the  reason  of  the  rule  leave  no  ques 
tion  as  to  the  right  of  a  court  and  its  duty  to  dismiss  from 
its  consideration  a  case  based  upon  a  consideration  which 
contravenes  public  policy.  Courts  do  not  sit  to  give  effect 
to  such  illegal  contracts.  The  law  is  not  to  be  subsidized 
to  overthrow  itself,  though  the  parties  to  the  litigation  may 
not  object  to  such  a  meretricious  exercise  of  power.  If  the 
public  time  and  the  authority  of  the  law  were  thus  at  the 
mercy  of  litigants,  the  sense  of  dignity  and  obligation  to  the 
laws  from  which  the  court  derives  its  powers  would  con~- 
8 


58  JUSTICES'  TREATISE. 

strain  it  to  desist  from  the  suicidal  task  of  subverting  the 
laws  which  it  was  organized  to  preserve  and  administer. 

The  cases  of  Coleman  vs.  Sarrel  (1  Vesey,  Jr.,  51),  and 
Viser  vs.  Bertrand  (14  Ark.  276),  are  in  point.  The  case  of 
Abbe  vs.  Marr,  etc.,  in  this  court,  is  to  the  same  effect,  as  is 
the  reasoning  of  the  supreme  court  of  the  United  States  in 
the  case  before  cited  from  4  Peters,  184,  where  the  pleadings 
failed  to  disclose  the  illegal  consideration.  15  Gal.  404,  405. 

SEC.  28.     Fraud  avoids  a  contract  of  sale.     12  Cal.  462. 

Thus  buying  goods  with  a  preconceived  design  of  not  pay 
ing  for  them,  prevents  the  property  passing.  12  Cal.  462. 

The  ownership  of  goods  is  not  changed  where  the  claim 
to  such  ownership  is  based  on  a  fraudulent  contract.  12 
Cal.  457. 

Where  the  defendant,  intending  to  deceive  the  plaintiff, 
got  from  him  a  bill  of  sale  for  goods,  under  the  representa 
tion  that  it  was  only  to  serve  as  a  temporary  security  for  the 
compliance  by  the  plaintiff  to  furnish  certain  securities  on 
previous  indebtedness,  and  at  this  time  intended  to  refuse 
to  receive  such  security,  or  give  plaintiff  the  advantage  of 
such  new  contract;  in  other  words,  if  the  possession  of  the 
goods  and  the  bill  for  them  were  procured  by  falsehood  and 
deceit,  such  bill  of  sale  was  void,  and  such  possession  was 
unlawful.  It  would  be  really  a  procuring  of  the  goods  and 
bill  of  sale  upon  false  pretenses.  In  such  cases  the  party 
can  take  no  benefit  from  his  fraud.  12  Cal.  461. 

It  is  as  much  a  trespass  to  take  possession  under  such  cir 
cumstances,  as  without  color  of  contract.  The  question  is 
not,  when  the  possession  is  fairly  obtained,  whether  a  fraud 
ulent  failure  to  comply  with  the  contract — which  is  the  con 
sideration  of  such  possession — avoids  the  sale,  or  makes  the 
original  taking  tortious;  but  the  point  is,  that  an  original 
fraudulent  design,  characterizing  and  entering  into  the  con 
tract  at  its  inception — which  fraudulent  design  is  to  use  the 
form  of  a  contract  as  a  covering  for  a  wrongful  taking  of  an 
other's  property — is  sufficient  to  divest  such  possession  of 
every  attribute  of  a  sal,e,  and  to  put  the  pretended  vendee 
in  the  same  condition  as  if  he  had  taken  the  goods  without 
the  pretense  of  sale.  On  reason  and  authority,  this  propo 
sition  is  law.  12  Cal.  461. 


CONTRACTS  PARTICULARIZED,   WHAT  CONSTITUTES,   ETC.      59 

* 

SEC.  29.  Where  a  party  knowingly  misrepresents  material 
facts,  the  law  will  not  permit  him  to  derive  any  benefit  from 
the  transaction.  The  injured  party  may  elect  to  rescind  the 
contract,  or  proceed  upon  the  covenants  of  his  deed.  7  Col. 
503. 

SEC.  30.  A  voluntary  promise  by  the  holder  of  defendant's 
agreement,  that  he  would  not  assign  it,  was  not  binding; 
and  where  the  contract  was  in  fact  made  for  the  benefit  of  a 
company  in  which  the  obligee  held  stock,  with  knowledge 
of  that  fact  on  the  part  of  the  defendant,  such  promise  was 
in  fraud  of  the  company's  rights,  and  the  defendant  could 
not  avail  himself  of  it.  8  Cal.  585. 

Nor,  if  the  fact  is  that  defendant  was  kept  in  ignorance  by 
the  obligee  of  the  contract  that  he  was  acting  for  the  com 
pany,  can  the  defendant  avail  himself  of  the  fact  as  a  de 
fense,  no  fraud  being  alleged,  while  he  retains  the  consid 
eration  paid  for  his  contract.  He  cannot  retain  the  consid 
eration  on  the  ground  of  fraud,  and  resist  the  payment  of 
the  penalty  of  an  infraction  of  his  contract,  on  the  same 
ground.  8  Cal.  585. 

SEC.  31.  Mistake  as  well  as  fraud  in  any  representation 
of  fact  material  to  the  contract,  furnishes  a  sufficient  ground 
to  set  it  aside  and  declare  it  a  nullity.  7  Cal.  510. 

A  contract  founded  in  mistake,  both  parties  supposing 
they  were  contracting  concerning  a  certain  article,  but  which 
article  had  no  existence,  is  void  for  want  of  the  substance 
of  the  thing  contracted  for.  4  Cal.  21. 

It  is  as  much  the  duty  of  the  vendor  to  know  what  he 
sells,  as  the  vendee  to  know  what  he  purchases.  4  Cal.  21. 

SEC.  32.  The  designation  of  a  contract  by  an  improper 
term  cannot  be  allowed  to  take  away  a  substantial  right, 
where  all  the  circumstances  under  which  it  came  into  exist 
ence  were  fully  and  particularly  detailed,  and  the  informa 
tion  was  sufficient  to  put  the  party  upon  full  inquiry  and 
to  enable  him  to  ascertain,  by  legal  advice,  the  exact  rights 
of  all  parties.  2  Cal.  492. 

SEC.  33.  Contracts  made  in  this  state  on  Sunday,  are 
not  void  because  made  on  Sunday.  26  Cal.  515. 

SEC.  34.     The  law  presumes  in  favor  of  the  validity  of 


60  JUSTICES'  TBEATISE. 

* 

contracts  (as  to  the  capacity  of  parties  to  make  them).  10 
Col.  400. 

Under  our  free  system  of  government,  every  man  has  the 
right  to  use  his  own  property  as  he  pleases,  and  to  make 
what  contracts  he  pleases  in  reference  to  it :  provided,  he 
does  not  injure  others  or  violate  some  law.  7  Cal.  307,  308. 

Courts  do  not  make  contracts  for  men.  They  are  sup 
posed  to  be  able  to  make  contracts  for  themselves ;  and  if 
a  man  chooses  to  bind  himself  to  pay  money  on  a  particular 
event,  he  may  as  well,  also,  give  character  to  that  event  and 
mark  and  describe  it,  and  hold  himself  only  bound  by  or 
after  the  event  so  defined.  12  Col.  329. 

SEC.  35.  It  is  not  alone  the  influence  of  liquor  which 
avoids  a  contract,  but  it  must  be  shown  to  exist  to  such  ex 
tent  as  to  seriously  impair  the  reasoning  faculties  at  the 
time  of  the  contract.  5  Cal.  412. 

SEC.  36.  The  defendant  can  avoid  a  promise  to  pay 
money  when  such  promise  was  made  during  infancy,  though 
he  did  not  disaffirm  the  contract  after  arriving  at  maturity. 
2  Cal.  102. 

SEC.  37.  The  effect  of  a  marriage,  at  common  law,  was 
to  deprive  the  wife  of  all  separate,  legal  existence,  her 
husband  and  herself  being  deemed  at  law  but  one  person. 
One  result  of  this  principle  was,  that  at  law,  she  was  inca 
pable  of  binding  herself  by  a  contract.  But  the  hardship 
of  the  rule  was  found  so  great  that  exceptions  were  made 
to  it  even  at  law.  Thus,  if  the  husband  became  civilitur 
mortuus,  or  even  transported  for  a  term  of  years,  or  had 
been  abroad  and  unheard  of  for  seven  years,  or  even  had 
left  the  state  without  the  intention  of  returning,  it  was 
held  that  she  could  contract  in  her  own  name,  and  was  lia 
ble  to  be  sued  alone  thereon.  23  Cal.  563. 

Execution  of  Contracts. 

SEC.  38.  It  is  a  general  principle  that  the  signer  of  any 
contract,  if  he  intends  to  prevent  a  resort  to  himself  per 
sonally,  should  express  in  the  contract  the  quality  in  which 
he  acts.  7  Cal.  540. 

The  capacity  in  which  the  party  acted  in  signing  his 
name  to  an  instrument  must  appear  alone  upon  the  face  of 


CONTEACTS  PAETICTILAEIZED,    WHAT  CONSTITUTES,    ETC.      61 

the  instrument  itself  ;  and  if  not  so  apparent,  he  must  be 
presumed  to  have  acted  in  his  own  individual  capacity,  and 
be  held  responsible  accordingly.  7  Gal.  540. 

SEC.  39.  The  word  "agent,"  appended  to  the  signature 
of  the  agent,  is  not  mere  descriptio  personae,  but  is  a  desig 
nation  of  the  capacity  in  which  he  acted,  (but  see  a  former 
decision).  7  CaL  535. 

'"\Yhen  one  makes  a  written  contract,  intending  to  act 
therein  as  the  agent  of  another  and  to  bind  his  principal, 
it  is  necessary  that  it  should  appear  in  the  contract  itself 
that  he  acts  as  such  agent.  7  CaL  539. 

SEC.  40.  A  contract  entered  into  by  a  number  of  indi 
viduals,  describing  themselves  in  the  contract  as  "directors 
of  the  Placer  Hotel  Company, "and  signed  by  them  indi 
vidually,  is  their  individual  contract,  and  not  that  of  -the 
company.  4  CaL  330. 

SEC.  41.  If  a  conveyance,  purporting  to  be  the  conveyance 
of  a  corporation,  made  by  orue  authorized  to  make  it  for  them, 
be  in  fact  executed  by  the  attorney  as  his  own  deed,  it  is 
not  the  deed  of  the  corporation,  although  it  was  intended  to 
be  so,  and  the  attorney  had  full  authority  to  make  it  so.  And 
if  the  deed  be  written  throughout  as  the  deed  of  the  corpo 
ration,  and  the  attorney  when  executing  it  declares  that  he 
executes  it  on  behalf  of  the  corporation,  but  says:  "In  wit 
ness  whereof,  I  set  my  hand  and  seal,"  this  is  his  deed  only, 
and  does  not  pass  the  land  of  the  corporation.  If,  however,  it 
was  only  a  simple  contract  which  was  executed  in  this  way, 
it  might  be  inferred  from  the  general  principles  of  the  law 
of  agency  that  it  would  be  valid  as  the  contract  of  the  cor 
poration,  for  it  would  be  a  contract  made  by  one  as  the  agent 
of  another  and  containing  the  express  declaration  that  it  was 
so  made.  13  CaL  49. 

SEC.  42.  A  party  may  bind  himself,  if  such  is  his  design, 
by  a  fictitious  signature,  and  if  he  admits  such  to  be  his 
intention,  he  cannot  complain  that  he  is  held  by  it.  10  CaL 
444. 

Modification  of  Contract 

SEC.  43.     In  a  suit  brought  on  quantum  meruit,  for  work 
.and  labor,  testimony  is  admissible  to  prove  that  the  original 


62  JUSTICES'  TKEATISE. 

contract  has  been  changed  at  the  request  of  the  defendants 
and  the  value  of  the  extra  work  performed.  4  Cal.  274. 

SEC.  44.  Where  the  entire  performance  of  a  special  con 
tract  has  been  prevented  by  one  of  the  parties,  or  its  terms 
have  been  varied  by  subsequent  agreement,  the  action  for 
the  amount  due  for  work  and  labor  should  be  in  the  form 
of  indebitatus  assumpsit,  and  not  upon  the  contract.  6  Cal. 
108. 

In  such  case,  the  contract  may  be  introduced  in  evidence 
by  either  party  as  an  admission  of  the  standard  of  value  or 
as  proof  of  any  other  fact  necessary  to  the  recovery,  and 
should  be  allowed  to  go  to  the  jury  whenever  it  can  aid 
them  in  attaining  a  sound  conclusion.  6  Cal.  108. 

SEC.  45.  Facts  Excusing  Compliance  with  Contract.— If. 
a  draft  is  given  for  part  of  the  purchase  price  of  goods, 
under  a  contract  that  the  vendor  shall  keep  the  goods 
ninety  days,  and  then  deliver  them  upon  the  payment  of 
the  entire  price,  less  the  draft,  and  before  the  time  expires 
the  purchaser  notifies  the  vendor  that  he  cannot  comply 
with  the  contract  but  will  pay  the  draft,  the  vendor  is  ex 
cused  from  keeping  the  goods.  31  Cal.  383. 

Entirety  of  Contract. 

SEC.  46.  An  entire  contract  is  indivisible — the  whole 
must  stand  or  fall  together.  But  a  contract,  made  at  the 
same  time,  of  different  articles,  at  different  prices,  is  not 
an  entire  contract,  unless  the  taking  of  the  whole  is  essen 
tial  from  the  character  of  the  property  or  is  made  so  by  the 
agreement  of  the  parties,  or  unless  it  is  of  such  a  nature 
that  a  failure  to  obtain  a  part  of  the  articles  would  materi 
ally  affect  the  objects  of  the  contract,  and  thus  have  influ 
enced  the  sale  had  such  failure  been  anticipated.  15  Cal. 
256. 

Thus,  a  sale  of  nine  slaves  for  a  gross  sum  is  an  entire 
contract.  There  being  no  means  afforded  for  determining 
the  price  of  each  one,  the  agreement  is  implied  that  the 
whole  are  to  be  taken  or  none.  15  Cal.  227. 

SEC.  47.  "Where  the  contract  is  entire,  a  breach  of  part 
is  a  breach  of  the  whole,  and  discharges  the  party  com 
plaining  of  it  from  the  performance  of  any  of  the  conditions 


CONTRACTS  PARTICULARIZED,    WHAT  CONSTITUTES,    ETC.      63 

on  his  part,  and  gives  him  a  complete  right  of  action.  4 
Col.  411. 

SEC.  48.  If  the  contract  for  the  erection  and  completion 
of  a  building  is  entire,  and  the  contractor  abandons  the 
work  before  it  is  completed,  he  loses  the  right  which  he 
would  have  had  to  the  full  compensation  agreed  on.  31  Cal. 
233. 

See  WORK  and  LABOR. 

Interpretation  and  Construction  of  Contracts. 

SEC.  49.  Contracts  like  statutes,  under  which  a  forfeit 
ure  is  claimed  to  have  accrued,  should  be  construed  strictly; 
and  the  facts  urged  in  support  of  the  forfeiture  ought  to  be 
clear  and  explicit,  and  not  be  left  to  inference  and  argument. 
1  Cal.  200. 

Definition  of  Words  used  in  a  Contract. — Contracting  par 
ties  have  the  power  to  define  the  words  which  they  use  in 
the  contract,  and  if  the  agreed  definitions  are  free  from  am 
biguity,  the  contract  will  be  enforced  according  to  the  defi 
nition  thus  assigned.  30  Cal.  344. 

A  written  contract  must  be  construed  so  as  to  give  effect, 
if  possible,  to  all  its  parts.  1  Cal.  200. 

SEC.  50.  Where  any  doubt  exists  as  to  the  true  meaning 
of  a  written  contract,  the  conditions  and  motives  of  the  con 
tracting  parties,  as  shown  by  its  recitals  or  by  outside  evi 
dence,  must  be  looked  into  to  ascertain  what  was  the  real 
intention  of  the  parties,  which,  when  ascertained,  must  pre 
vail  over  the  literal  sense.  29  Cal.  299. 

SEC.  51.  Contracts  with  Tivo  Constructions. — Where  a  con 
tract  admits  of  two  constructions,  one  of  which  nullifies  the 
contract  and  the  other  upholds  it,  the  former  must  be  dis 
carded  and  the  latter  adopted.  29  Cal.  299. 

SEC.  52.  The  doctrine  of  election  applies  only  to  cases 
where  the  party  upon  whom  rests  the  performance  stands  in 
the  same  position  to  both  alternatives  presented,  and  is 
bound  to  indicate  his  choice  between  them.  In  cases  where 
the  doctrine  is  applicable,  the  right  of  election  upon  failure 
of  the  party  upon  whom  the  performance  rests  to  indicate 
his  choice  passes  to  the  other  side,  as  in  this  way  only  can 
the  obligation  become  absolute  and  determinate.  Thus,  if 


°4  JUSTICES    TREATISE. 

a  debtor,  by  a  given  day,  is  to  pay  money  or  furnish  goods, 
it  is  evident  that  upon  a  failure  to  indicate  which  of  the  two 
he  will  do,  the  obligation  would  be  indefinite  and  uncertain. 
But  this  is  quite  different  from  a  contract  to  do  a  certain 
thing  absolutely  by  a  given  day,  with  the  privilege  of  dis 
charging  the  obligation  in  some  other  way  previously.  In 
such  case,  if  the  privilege  is  not  exercised,  the  obligation  is 
not  left  in  uncertainty,  but  is  definite  and  absolute.  15  Gal. 
258. 

SEC.  53.  A  parol  variation  of  an  agreement  under  seal, 
after  its  execution,  will  be  upheld,  because  one  will  not  be 
permitted  to  take  advantage  of  the  non-performance  of  that 
which  he  prevented.  4  Gal.  336 ;  2  Gal.  584. 

SEC.  54.  In  the  construction  of  contracts,  the  primary- 
object  is  to  attain  the  meaning  of  the  parties;  and  this  mean 
ing  is  to  be  gathered  from  the  language  which  they  have 
employed,  the  subject  to  which  it  applies,  the  nature  of  the 
transaction  and  surrounding  circumstances.  16  Gal.  448. 

SEC.  55.  Courts  will  always  give  a  reasonable  interpreta 
tion  to  contracts  when  the  words  justify  it.  10  Gal.  540. 

In  a  court  of  law,  effect  is  to  be  given  to  a  bargain  accord 
ing  to  its  terms,  and  courts  of  law  cannot  speculate  upon 
the  weight  attached  to  one  or  another  of  the  elements  of  an 
obligation.  12  Gal.  240. 

Where  several  papers,  concerning  the  same  subject  mat 
ter,  are  executed  by  or  between  the  same  parties  at  the  same 
time,  all  are  to  be  construed  together  as  one  instrument.  12 
Gal.  577. 

SEC.  56.  When  it  is  necessary  to  give  an  opinion  upon 
the  doubtful  words  of  the  deed,  the  first  thing  to  be  inquired 
into  is,  what  was  the  intention  of  the  parties?  If  the  inten 
tion  of  the  parties  be  as  doubtful  as  the  words,  it  will  be  of 
no  assistance  at  all,  but  if  the  intent  of  the  parties  be  plain 
and  clear,  such  construction  ought,  if  possible,  to  be  put  on 
the  doubtful  words  of  a  deed  as  will  best  answer  the  intent 
of  the  parties,  and  reject  that  construction  which  mani 
festly  tends  to  overturn  and  destroy  it.  10  Gal.  105,  106. 

To  arrive  at  this  intention,  the  situation  of  the  parties, 
and  the  subject  matter  at  the  time  of  contracting,  should  be 
considered;  the  whole  deed  should  be  taken  together,  and, 


CONTRACTS  PARTICULARIZED,    WHAT  CONSTITUTES,    ETC.      65 

if  possible,  effect  should  be  given  to  all  of  its  parts.  It  is  a 
true  and  important  rule  of  construction,  that  the  sense  and 
meaning  of  the  parties  to  any  particular  instrument  should 
be  collected  ex  antecedentibiis  et  consequentibus ;  that  is  to  say, 
every  part  of  it  should  be  brought  into  action  in  order  to 
collect  from  the  whole  one  uniform  and  consistent  sense, 
if  that  may  be  done;  or,  in  other  words,  the  construction 
must  be  made  upon  the  entire  instrument,  and  not  merely 
upon  disjointed  parts  of  it;  the  whole  context  must  be  con 
sidered  in  endeavoring  to  collect  the  intention  of  the  parties, 
although  the  immediate  object  of  inquiry  be  the  meaning  of 
an  isolated  clause.  In  short,  the  law  will  adjudge  of  a  deed 
or  other  instrument  consisting  of  divers  parts  or  clauses, 
by  looking  at  the  whole,  and  will  give  to  each  part  its  proper 
office,  so  as  to  ascertain  and  Garry  out  the  intention  of  the 
parties.  10  Gal  106. 

The  reason  of  this  rule  is,  that  the  same  parties  make  all 
the  contract,  and  may  be  supposed  to  have  the  same  purpose 
and  object  in  view  in  all  of  it ;  and  if  this  purpose  is  more 
clear  and  certain  in  some  parts  than  in  others,  those  which 
are  obscure  may  be  illustrated  by  the  light  of  others.  If 
several  instruments  are  made  at  the  same  time,  by  the 
same  parties,  and  in  relation  to  the  same  subject,  the  in 
tention  of  the  parties  is  to  be  gathered  from  all  the  instru 
ments  taken  together,  and  the  recitals  in  each  may  be  ex 
plained  or  corrected  by  reference  to  any  other.  10  Cal. 
106. 

Oral  evidence  is  sometimes  admissible  to  explain  but  not 
to  contradict  or  vary  the  terms  of  a  written  contract ;  thus, 
if  the  words  of  a  contract  be  ambiguous,  its  meaning  may 
be  gathered  from  contemporaneous  facts  which  intrinsic 
testimony  establishes.  If,  when  the  intention  is  thus  ascer 
tained,  it  is  found  that  the  words  will  fairly  bear  a  construc 
tion  which  makes  them  express  this  intention,  then  the 
words  will  be  so  construed,  and  the  contract  in  this  sense, 
or  with  this  interpretation,  will  be  enforced  as  the  contract 
which  the  parties  had  made.  The  distinction  between  pat 
ent  and  latent  ambiguities  are  now  regarded  as  intended 
to  enable  the  court  to  distinguish  between  cases  curable 
and  those  of  incurable  uncertainty  ;  to  carry  the  aid  of  evi- 


66  JUSTICES'  TREATISE. 

dence  as  far  as  it  can  go,  without  making  for  the  parties 
what  they  did  not  make  for  themselves.     10  Cal.  106. 

Sealed  Contracts. 

SEC.  57.  The  old  and  unmeaning  distinction  between 
sealed  and  unsealed  instruments  is  done  away  with  by  our 
statute,  and  the  consideration  of  a  sealed  bond  may  be  im 
peached  by  the  obligor  in  the  same  manner  as  a  promissory 
note  by  the  maker.  The  intention  of  the  legislature  was 
to  place  bonds  and  notes  on  the  same  footing  in  respect  to 
defense.  12  Cal.  286. 

SEC.  58.  When  no  words  appear,  in  the  body  of  the  in 
strument  of.  the  intent  to  make  it  a  sealed  instrument,  it 
will  not  be  such,  even  though  the  characters  (L.S.)  are 
added.  13  Cal.  220. 

SEC.  59.  Sufficiency  of. — An  impression  upon  paper  con 
stitutes  a  good  seal,  and  this  may  be  made  as  well  by  a 
pen  as  by  a  stamp ;  therefore,  a  scrawl,  with  the  word 
"  seal "  written  within.it,  or  with  the  initials  L.s. ,  is  suffi 
cient.  5  Cal.  315. 

SEC.  60.  Seal  of  Corporation. — Admitted,  for  the  pur 
pose  of  this  decision,  that  a  corporation  may  adopt  the  pri 
vate  seal  of  the  several  trustees  or  any  one  of  ifiem  as  its 
seal  for  the  occasion.  33  Cal.  11. 

Contracts  -with  the  State. 

SEC.  61.  The  state  can  claim  no  greater  exemption  than 
an  individual  from  the  usual  consequences  of  an  unwise 
and  impolitic  contract.  15  Cal.  457. 

Contracts  with  Executors  or  Administrators. 

SEC.  62.  An  executor  or  administrator  is,  in  ordinary 
cases,  personally  liable  upon  contracts  made  by  him,  in  his 
representative  capacity,  after  the  death  of  the  person  whom 
he  represents,  and  supported  by  some  new  consideration.  1 
Cal.  392. 

The  public  administrator  is  the  representative,  not  of  the 
government  nor  of  any  political  subdivision  of  the  state, 
but  of  a  private  estate  committed  to  his  charge ;  for  his  serv 
ices  in  relation  to  which  he  is  entitled  to  receive  a  percent 
age  as  compensation.  1  Cal.  392. 


CONTRACTS  PARTICULARIZED,    WHAT  CONSTITUTES,   ETC.      67 

SEC.  63.  No  distinction  can  be  made  between  contracts 
made  by  a  public  administrator  with  third  persons  and  con 
tracts  made  by  common  executors  and  administrators.  The 
mode  of  appointment  is  different — -the  responsibility  the 
same.  1  Gal.  392. 

Contracts  of  Corporation. 

SEC.  64.  Contracts  of  corporations,  whether  public  or  pri 
vate,  stand  on  the  same  footing  with  the  contracts  of  natural 
persons,  and  depend  on  the  same  circumstances  for  their 
validity  and  effect.  The  doctrine  of  ratification  and  estop 
pel  is  as  applicable  to  corporations  as  to  individuals,  and 
the  former  are  bound  by  the  acts  of  their  agents  in  the  same 
manner  and  to  the  same  extent  as  the  latter. 

As  a  rule,  the  powers  of  corporations,  municipal  or  others, 
must  be  exercised  in  the  mode  pointed  out  by  the  charter. 
But  even  a  want  of  authority  is  not,  in  all  cases,  a  sufficient 
test  of  the  exemption  of  the  corporation  from  liability  in 
matters  of  contract.  An  executory  contract,  made  without 
authority,  cannot  be  enforced ;  but  where  the  contract  has 
been  executed  and  the  corporation  has  received  the  benefit 
of  it,  the  law  interposes  an  estoppel  and  will  not  permit  the  ' 
validity  of  the  contract  to  be  questioned.  16  Cal.  273. 

As  to  the  contracts  of  corporations,  the  rule  is,  that  when 
the  question  is  one  of  capacity  or  authority  to  contract,  aris 
ing  either  on  a  question  of  regularity  of  organization  or  of 
power  conferred  by  the  charter,  a  party  who  has  had  the 
benefit  of  the  contract  cannot,  in  an  action  founded  upon  it, 
contest  its  validity.  And  this  rule  applies  with  equal  force 
to  all  corporations,  public  or  private.  16  Cal.  264. 

SEC.  65.  A  municipal  corporation  derives  all  its  power 
from  its  charter;  and  where  its  charter  prescribes  the  mode 
in  which  its  contracts  shall  be  made,  no  contract  will  bind 
the  corporation  unless  made  in  that  mode.  20  Cal.  96. 

SEC.  66.  A  municipal  corporation  acting  under  a  charter 
expressing  the  mode  in  which  its  contracts  for  the  improve 
ment  of  its  property  shall  be  made,  cannot  be  rendered 
liable  for  improvements  made  in  the  absence  of  such  con 
tract,  on  the  ground  of  an  implied  contract  to  pay  for  the 
benefits  received.  The  law  never  implies  an  agreement 


68  JUSTICES'  TREATISE. 

against  its  own  restrictions  and  prohibitions  ;  it  never  im 
plies  an  obligation  to  do  that  which  it  forbids  the  party  to 
agree  to.  20  Col.  97. 

As  a  general  rule,  a  city  is  only  liable  upon  express  con 
tracts  authorized  by  ordinance.  The  exceptions  relate  to 
liabilities  from  the  use  of  money  or  other  property  which 
does  not  belong  to  her  and  to  liabilities  springing  from  neg 
lect  or  duties  imposed  by  her  charter  from  which  parties 
are  enjoined.  Even  these  exceptions  are  limited  in  many 
instances,  as  \fhere  the  property  or  money  is  received  in 
disregard  of  positive  prohibitions  in  her  charter— as,  for 
instance,  upon  the  issuance  of  bills  of  credit.  16  Cal.  283. 

J3EC.  67.  Plaintiff,  by  virtue  of  contracts  entered  into 
with  an  officer  of  the  city  of  San  Francisco,  which  contracts 
were  executed  by  such  officer  in  his  official  capacity,  made 
valuable  and  permanent  improvements  to  the  city  for  the 
exclusive  benefit  of  it  and  its  inhabitants;  such  improve 
ments  were  made  under  the  immediate  supervision  of  an 
officer  of  the  city  and,  when  completed,  were  approved  of 
and  received  by  him,  on  behalf  of  the  city;  plaintiff,  in 
making  the  improvements,  relied  on  the  validity  of  the  con 
tracts  and  the  obligation  of  the  city  to  pay  as  therein  pro 
vided;  the  city  authorities  were  fully  informed  of  these  facts, 
took  no  steps  to  repudiate  the  contracts,  or  to  inform  plaint 
iff  as  to  her  disposition  to  pay:  Held,  that  plaintiff  can  re 
cover  on  the  contracts,  although  there  is  no  evidence  that 
the  officer  signing  them  was  expressly  authorized;  that  the 
silence  of  the  city  authorities,  under  the  circumstances,  was 
equivalent  to  a  direct  sanction  of  the  acts  of  such  officer,  and 
estops  the  city  from  denying  his  authority;  that  the  city  hav 
ing  acquiesced  in  the  contracts  from  the  commencement  to 
the  completion  of  the  improvements,  never  questioning  the 
validity  of  the  contracts  until  she  had  received  all  the  benefit 
to  be  had  from  their  performance,  it  would  be  a  fraud  on 
plaintiff  to  permit  her  now  to  repudiate  them.  16  Cal.  274." 

The  common  council  of  the  city  of  San  Francisco  passed 
an  ordinance  authorizing  the  street  commissioner  to  adver 
tise  for  proposals  to  grade,  plank  and  sewer,  a  portion  of 
Mission  street,  in  said  city,  ' '  the  same  to  be  paid  for  by  the 
property  holders  adjacent  *  *  the  proposal  to  be  opened. 


CONTRACTS  PARTICULARIZED,    WHAT   CONSTITUTES,    ETC.      69 

and  awarded  by  the  street  commissioner,  witli  the  commit 
tees  on  streets  from  both  boards  of  aldermen."  This  ordi 
nance  was  published  for  ten  days  successively  in  a  daily 
newspaper  of  the  city,  and  the  advertisement  required  was 
made  in  like  manner  for  the  same  period.  Proposals,  based 
upon  certain  specifications,  were  received  under  the  ordi 
nance,  and  opened  by  the  committees  of  the  two  boards  and 
the  commissioner,  and  the  work  awarded  to  B.  Subse 
quently,  an  instrument  was  executed  by  B  as  contractor  and 
by  the  street  commissioner,  purporting  to  act  in  the  name 
of  the  city,  setting  forth  the  acceptance  by  the  city  of  B's 
proposal,  and  an  agreement  by  her  to  pay  him  for  the  work 
at  certain  designated  rates,  and  an  agreement  on  his  part  to 
do  the  work  to  the  satisfaction  of  the  city  and  the  street 
commissioner.  B  began  the  work,  and  afterwards  trans 
ferred  his  contract  and  his  interest  therein  to  plaintiff,  who 
completed  the  work  in  the  best  manner  and  to  the  satisfac 
tion  of  the  street  commissioner  and  the  city.  The  work  was 
measured  as  it  progressed,  by  the  city's  engineer,  who  duly 
certified  to  the  accounts  for  the  same,  which  accounts  were 
duly  audited,  and  upon  them  warrants  were  drawn  by  the 
controller,  by  authority  of  the  city,  and  delivered  to  plaint 
iff.  The  warrants  were  presented  to  the  treasurer  and  pay 
ment  demanded,  and  refused  on  the  ground  that  there  were 
no  funds  in  the  treasury  applicable  to  them.  Previous  to 
the  demand,  assessments  had  been  duly  levied  by  the  city 
upon  the  property  adjacent  to  the  improvements  to  meet 
their  expenses,  and  these  assessments  had  been  collected  by 
the  collector  of  street  assessments,  and  by  him  paid  into  the 
city  treasury.  Plaintiff  sues  the  city,  as  liable  either  on  the 
express  contract,  or  upon  the  warrants  or  upon  implied  con 
tracts,  for  the  services  rendered  and  materials  furnished,  or 
for  the  money  received  by  defendant  to  his  use:  Held,  that 
as  under  the  charter,  the  city  had  authority  to  order  the  im 
provements  in  question,  the  acceptance  of  the  proposals  of 
B  by  the  street  commissioner  and  the  committees  of  the  two 
boards,  converted  what  were  previously  mere  propositions 
on  the  part  of  the  city  into  contracts,  perfect  in  all  their 
parts,  binding  alike  upon  the  city  and  the  contractor:  Held, 
further,  that  the  city  is  primarily  liable ;  that  she,  and  not 


70  JUSTICES'  TEEATISE. 

the  contractor,  must  look  to  the  property  holders  adjacent 
to  the  improvements  for  the  necessary  expenses;  that  the 
property  holders  are  not  parties  to  the  contract;  that  the 
city  must  levy  and  collect  the  assessments;  that  the  con 
tractor  has  no  claim  upon  the  property  or  the  property  hold 
ers,  but  must  look  alone  to  the  city;  that  the  clause  in  the 
ordinance,  as  to  how  the  improvements  shall  be  paid  for,  is 
only  a  designation  of  the  sources  upon  which  the  city  relies 
for  payment.  17  Col.  276. 

SEC:  68.  The  terms,  "adopted"  and  "ratified,"  are  prop 
erly  applicable  only  to  contracts  made  by  a  party  acting  or 
assuming  to  act  for  another.  The  latter  may  then  adopt  or 
ratify  the  act  of  the  former,  however  unauthorized.  To 
adoption  and  ratification  there  must  be  some  relation,  actual 
or  assumed,  of  principal  and  agent.  12  Gal.  551. 

Ratification  is  equivalent  to  a  previous  authority.  It 
operates  upon  the  contract  in  the  same  manner  as  though 
the  authority  to  make  the  contract  had  existed  originally. 
20  CaL  96. 

The  power  to  ratify  necessarily  supposes  the  power  to 
make  the  contract  in  the  first  instance;  and  the  power  to 
ratify  in  a  given  mode,  supposes  the  power  to  contract  in 
the  same  way.  20  CaL  96. 

Thus,  where  the  charter  of  a  municipal  corporation  au 
thorizes  a  contract  for  work  to  be  given  only  to  the  lowest 
bidder,  after  notice  of  the  contemplated  work  in  the  public 
journals,  a  contract  made  in  any  other  way — that  is,  given 
to  any  other  person  than  such  lowest  bidder— cannot  be 
subsequently  affirmed.  The  corporate  authorities  cannot 
do  retroactively  what  they  are  prohibited  from  doing  orig 
inally.'  20  Col.  96. 

SEC.  69.  A  contract  not  in  its  origin  obligatory  upon  a 
municipal  corporation,  by  reason  of  not  having  been  made 
in  the  mode  prescribed  by  the  charter,  cannot  be  affirmed 
and  ratified  in  disregard  of  that  mode  by  any  subsequent 
action  of  the  corporate  authorities  and  a  liability  be  there-, 
by  fastened  upon  the  corporation.  20  CaL  96. 

SEC.  70.  A  ratification  of  a  contract  made  by  an  agent 
professing  to  act  therein  for  the  principal,  but  not  having 
authority  for  such  purpose,  must,  in  order  to  bind  the 


CONTKACTS  PARTICULAKIZED,    WHAT  CONSTITUTES,    ETC.      71 

principal,  be  made  by  him  with  a  knowledge  of  the  terms 
of  the  contract  and  the  material  facts  affecting  it.  20 
Col.  602. 

A  ratification  amounts,  in  itself,  to  presumptive  evi 
dence  of  everything  necessary  to  sustain  it.  It  supposes  a 
knowledge  of  the  thing  ratified,  and  in  the  case  of  a  con 
tract  the  inference  from  the  ratification  is  that  its  terms 
were  known;  and  to  rebut  this  inference,  evidence  of  mis 
take  or  misapprehension  is  required.  20  Cal.  602. 

N,  the  president,  and  also  one  of  the  trustees,  of  a  cor 
poration,  made  on  its  behalf  a  written  contract  for  the  pur 
chase  of  certain  ditch  property,  and  immediately  thereaf 
ter  participated  in  a  meeting  of  the  trustees,  at  which  he 
made  a  written  report  stating  that  he  had  purchased  the 
property,  and  stating  partially,  but  not  fully,  the  terms  of 
the  contract,  upon  which  the  trustees  by  a  vote  ratified  the 
report  and  proceedings :  Held,  that  the  board  must  be  pre 
sumed  to  have  known  the  terms  of  the  contract  which  it 
ratified;  that  this  presumption  could  only  be  overcome  by 
evidence  to  the  contrary;  that  the  facts  presented  did  not 
show  a  want  of  knowledge,  but  that  from  the  presence  and 
participation  of  N,  actual  knowledge  by  the  board  was  rather 
to  be  inferred.  20  Col.  602. 

Rescission  of  Contracts. 

SEC.  71.  The  rule  is  general  that  the  right  to  rescind 
a  contract  rests  only  with  the  party  who  is  without  default. 
One  party  cannot  violate  the  contract  himself  and  then  seek 
a  rescission,  on  the  ground  that  the  other  party  has  followed 
his  example.  Cliitty  on  Cont.  636. 

Where  the  contract  has  been  in  part  performed,  and  the 
parties  cannot  be  restored  to  their  original  position,  the 
right  of  rescission  cannot  exist.  A  contract  cannot  be  re 
scinded  "if  the  failure  of  the  other  party  be  but  partial, 
leaving  a  distinct  part  as  a  subsisting  and  executed  consid 
eration,  and  leaving  also  to  the  other  party  his  action  for 
damages  for  the  part  not  performed.  Generally,  no  contract 
can  be  rescinded  by  one  of  the  parties,  unless  both  can  be 
restored  to  the  condition  in  which  they  were  before  the  con 
tract  was  made.  If,  therefore,  one  of  the  parties  has  derived 


72  JUSTICES'  TREATISE. 

any  advantage  from  a  partial  performance,  lie  cannot  hold 
this  and  consider  the  contract  as  rescinded  because  of  the 
non-performance  of  the  residue,  but  must  do  all  that*  the 
contract  obliges  him  to  do,  and  seek  his  remedy  in  dam 
ages."  15  Col.  458. 

It  is  a  universal  rule,  that  where  a  party  seeks  to  recover 
back  money  paid  upon  a  contract,  on  the  ground  that  it  is 
void  for  fraud,  or  that  it  has  been  rescinded,  such  party 
must  restore,  or  offer  to  restore,  whatever  he  has  received 
under  the  contract,  so  as  to  put  the  other  contracting  party 
in  statu  quo.  Whatever  may  be  valuable  to  the  defendant 
must  be  restored  to  him,  though  it  be  of  no  value  to  the 
plaintiff.  16  Col.  638 ;  15  Col.  458. 

The  rule  is,  that  a  party  entering  by  virtue  of  a  contract, 
and  holding  possession  under,  and  enjoying  the  fruits  of,  a 
contract,  if  he  desires  to  rescind  it  for  fraud,  must  act 
promptly  and  give  notice  promptly  of  his  intention  to  re 
scind  it ;  otherwise  he  will  be  held  to  have  waived  the  fraud. 
He  cannot  lie  by  and  enjoy  the  benefits  of  a  contract  until 
the  other  party  seeks  to  enforce  it,  and  then  set  up  its  in 
validity,  when  he  knows  that  the  representations  which  in 
duced  him  to  make  it  were  fraudulent  3  Johns.  Ch.  B.  23; 
17  Johns.  437;  1  S.  &  M.  Cli.R.  390;  9  Porter,  420.  17  Cat. 
384. 

In  order  to  rescind  a  contract  for  the  sale  of  land,  on  the 
ground  that  the  vendor  cannot  perform  it,  because  he  has 
no  title  to  the  land,  it  is  necessary  for  the  vendee  to  aver 
and  show  an  outstanding  paramount  title  in  another.  4 
Col.  267. 

SEC.  72.  A  parol  agreement  to  rescind  a  contract  under 
seal,  is  good  if  such  parol  agreement  is  executed.  Such  an 
agreement  may  be  presumed  from  the  acts  of  the  parties. 
2  Col.  585. 

SEC.  73.  The  cases  where  possession  must  be  surrender 
ed  before  action  can  be  brought  for  the  purchase  money,  are 
those  where  a  contract  has  been  made  and  possession  has 
been  taken  thereunder,  and  the  vendee  seeks  to  rescind  the 
contract  on  the  ground  of  defective  title,  or  the  inability  of 
the  vendor  to  perform  the  contract  on  his  part,  or  of  some 
fraudulent  representations  inducing  its  execution.  In  these 


CONTRACTS  PARTICULARIZED,    WHAT  CONSTITUTES,    ETC.      73 

cases  the  vendee  must  first  offer  to  restore  whatever  he  has 
received,  before  he  can  call  upon  the  vendor  to  refund  the 
purchase  money.  McCracken  vs.  City  of  San  Francisco,  16 
Cal.  628. 

Where  the  contract  is  void,  there  is  nothing  to  rescind, 
no  rights  are  acquired,  and  there  are  in  consequence  no 
rights  to  restore.  This  distinction  between  the  cases  where 
the  possession  is  taken  under  a  contract,  and  where  there  is 
possession  with  a  void  contract — that  is,  where  there  is  no 
contract — rests  upon  principle,  and  is  fully  recognized  by 
the  authorities.  16  Cal.  628. 

There  can  be  no  rescission  of  a  contract  against  public 
policy.  Such  contract  is  void  at  its  inception,  and  there  is 
nothing  to  rescind.  37  CaL  168. 

Performance  of  Contracts. 

SEC.  74.  Where  the  defendant  being  the  owner,  in  whole 
or  in  part,  of  certain  steamers,  in  consideration  of  a  sum  of 
money  paid  to  him,  covenanted  that  he  would  not  run,  or 
suffer  to  be  run  or  employed,  those  steamers  on  certain 
waters  of  the  state :  Held,  that  he  was  not  released  from  his 
covenant  by  a  sale  of  the  steamers  or  of  his  interest  therein. 
8  CaL  585. 

SEC.  75.  Every  one  must  be  held  bound  by  the  plain 
and  obvious  meaning  of  his  engagements.  The  plaintiff, 
to  maintain  his  action,  must  show  that  he  has  done  all  that 
he  agreed  to  do.  Thus,  in  an  action  on  a  written  contract 
to  deliver  a  certain  quantity  of  "sound"  rice,  the  plaintiff 
must  show  that  the  rice  was  "sound,"  and  failing  to  do  so, 
he  cannot  recover  on  the  contract.  4  CaL  357. 

SEC.  76.  It  is  a  general  principle  of  the  common  law 
that  whoever  seeks  redress  for  the  violation  of  a  contract 
resting  upon  mutual  and  dependent  covenants,  to  obtain 
redress,  must  himself  have  performed  the  obligations  on 
his  part.  10  CaL  254. 

SEC.  77.  Where  promises  are  dependent,  neither  party 
can  maintain  an  action  against  the  other  without  showing 
performance  or  an  offer  to  perform.  1  CaL  338. 

As,  when  A  agreed  to  carry  to  B  a  certain  vessel,  called 
the  "Mariposa,"  and  B  gave  his  promissory  note  for  the 
10 


74  JUSTICES'  JEEATISE. 

consideration  money,  payable  at  a  future  day  :  Held,  that 
A  being  still  the  holder  of  the  note,  could  not  bring  an 
action  thereon  without  showing  that  he  had  conveyed  the 
vessel  to  B  or  had  tendered  a  conveyance.  1  Cal.  338. 

SEC.  78.  Where  the  contract  is  entire,  a  breach  of  part 
is  a  breach  of  the  whole,  and  discharges  the  party  com 
plaining  of  it  from  the  performance  of  any  of  the  conditions 
on  his  part,  and  gives  him  a  complete  right  of  action.  4 
Cal.  411. 

SEC.  79.  Where  the  contract  declared  on  is  joint,  and 
there  is  no  evidence  showing  that  one  of  the  parties  sued 
was  party  to  the  contract,  he  cannot  be  made  liable  on  the 
contract.  His  receipt  of  money  on  account  of  work  is  not 
sufficient  to  fix  his  liability.  It  would  be  at  most,  a  mere 
circumstance.,  which  should  be, left  to  the  jury,  tending  to 
show  that  he  may  have  been  a  party  to  the  contract,  if 
there  was  any  controversy  on  that  point.  4  Cal.  232,  233. 

SEC.  80.  While  it  is  a  general  rule  that  a  contract  is  ob 
ligatory  between  the  parties  who  execute  it,  yet  it  may,  in 
certain  cases,  be  enforced  by  a  party  for  whose  benefit  it  was 
made.  If,  for  example  :  A  stipulate  with  B  to  pay  to  C  a 
stated  sum  of  money,  C  can  enforce  the  contract.  7  Cal. 
473,  474. 

SEC.  81.  The  plaintiff  sued  the  defendant  to  recover  a  sum 
of  money  agreed  by  express  contract  to  be  paid  him  by  the 
supervisors,  as  examining  physician  of  the  hospital  for  the 
county  for  one  year,  from  October  17th,  1856,  to  October 
17th,  1857.  The  complaint  avers  that  he  entered  upon 
the  duties  of  the  office  or  appointment,  and  was  ready  to  per 
form  at  all  times  the  duties  imposed  by  the  contract  as  they 
should  be  required.  The  contract  having  been  made  by 
the  board  of  supervisors,  it  was  not  in  their  power  to  abro 
gate  it  by  rescinding  the  order  under  which  the  plaintiff  was 
appointed  or  abolishing  the  office.  This  has  been  often 
decided.  The  distinction  is  very  apparent  between  an  office 
constituted  by  legislative  act,  and  a  contract  made  with  a 
party  to  render  for  a  stated  period  certain  services,  though 
these  services  are  to  be  rendered  in  a  capacity  in  the  nature 
of  a  public  office  or  appointment.  14  Cal.  445,  446. 

SEC.  82.     A  man  pledging  the  fruits  of  his  labor  to  pay 


CONTRACTS  PARTICULARIZED,  WHAT  CONSTITUTES,  ETC.   75 

his  debts,  may  not  be  compelled  by  liis  creditor  to  work, 
but  if  lie  does  work  and  earns  the  money,  we  suppose  it 
could  scarcely  be  held  that  he  may  dispose  of  the  money  as 
he  chooses.  16  Gal.  34. 

SEC.  83.  "A  promise  and  a  tort,"  says  Hilliard,  "may 
be  coincident,  giving  to  the  party  injured  by  the  breach  of 
the  promise,  a  remedy,  as  for  a  simple  wrong,  without  refer 
ence  to  the  accompanying  contract  as  such.  In  other  words, 
the  breach  of  a  contract  may  be  a  wrong,  in  respect  of  which 
the  party  injured  may  sue  in  tort,  instead  of  suing  upon  the 
contract."  Hill  on  Torts,  3. 

The  cases  in  which  this  principle  has  been  applied  are 
very  numerous.  In  Ives  vs.  Carter  (24  Conn.  392),  the 
plaintiff  had  been  induced,  by  fraudulent  representations, 
to  enter  into  a  contract,  which  was  subsequently  broken. 
The  question  was,  whether  the  plaintiff  could  sue  in  tort  for 
the  fraud  or  was  compelled  to  seek  relief  by  an  action  upon 
the  contract.  The  court  said  :  "In  a  case  thus  situated,  it 
appears  to  us,  that  the  party  may  have  his  election  to  sue 
either  upon  the  contract  or  for  the  fraud;  and,  in  either 
case,  so  long  as  it  appears  that  the  party  is  entitled  to  the 
remedy  he  has  selected,  it  can  be  no  objection  that  he  was 
also  entitled  to  another  remedy."  In  Gary  vs.  Hotailing 
(1  Hill.  311),  it  was  held,  that  a  fraudulent  vendee  of  goods 
might  be  charged  in  assumpsit  for  the  price,  or  in  trespass, 
at  the  pleasure  of  the  vendor.  In  Donnett  vs.  Jones  (13  Ala. 
490),  an  action  in  tort  was  maintained  for  the  wrongful  and 
malicious  suing  out  of  an  attachment,  although  the  plaintiff 
might  have  proceeded  upon  the  attachment  bond.  18  Gal. 
533. 

SEC.  84.  In  an  action  on  a  bond,  conditioned  that  the 
defendant  should,  by  a  certain  day,  procure  and  deliver  to 
the  plaintiff  a  certain  bond  and  mortgage,  and  discharge 
the  same  of  record,  and  the  defendant  did  produce  them  and 
offered  them  to  the  plaintiff,  proposing  to  do  whatever  else 
he  required  to  discharge  the  mortgage,  but  the  plaintiffy 
not  knowing  what  was  necessary  to  be  done,  agreed,  by 
parol,  to  waive  a  literal  performance,  in  this  respect,  if  the 
defendant  would  do  another  act,  which  he  afterwards  did, 


76  JUSTICES'  TREATISE. 

it  was  held,  that  the  evidence  of  a  parol  waiver  was  admis 
sible,  and  amounted  to  a  defense.  4  Col.  316. 

He  who  has  had  the  benefit  of  an  act  or  who  prevents  a 
thing  from  being  done,  cannot  be  allowed  to  take  advantage 
of  the  non-performance  which  he  has  occasioned.  4  Cal. 
316. 

The  subsequent  parol  contract  is  not  void,  under  the  stat 
ute  of  frauds.  The  statute  contains  no  provision  with  re 
gard  to  the  dissolution  of  agreements  or  contracts  under 
seal  for  the  sale  of  land.  Although  the  subsequent  parol 
contract  might  nave  been  void,  its  execution  took  it  out  of 
the  statute,  and  it  is  binding  on  the  parties.  4  Cal.  317. 

SEC.  85.  In  a  contract  for  the  sale  of  a  certain  number 
of  shares  of  fruit  growing  on  the  trees  of  an  orchard,  owned 
in  shares,  where  the  vendor  guaranteed  to  the  vendee,  that 
the  shares  of  fruit  should  be  at  his  disposal  on  the  trees, 
free  from  trouble  and  annoyance  from  other  parties ;  on 
breach  of  such  contract,  where  no  special  damage  is  alleged, 
the  measure  of  damage  is  the  highest  market  price  of  the 
fruit  on  the  trees  at  the  orchard,  if  there  is  any  market 
value  for  it  there  ;  if  not,  then  if  the  vendee  is  prepared  to 
gather  it  and  carry  it  to  the  market,  the  market  value  there, 
less  the  cost  of  gathering  and  carriage.  12  Cal.  171. 

If  other  persons  were  in  possession  of  the  orchard  when 
the  vendee  went  to  gather  #ie  fruit,  and  if  those  persons 
forbade  him  or  his  agents  and  servants  from  going  in  and 
gathering  the  fruit  purchased,  and  if  the  vendee  could  not 
have  done  so  without  risk  of  personal  collision  or  violence, 
then  the  guarantee  was  broken,  and  though  the  vendee 
might  have  been  permitted  to  gather  a  portion  of  the  fruit 
bought,  but  not  all,  he  had  a  right  to  come  away  and  hold 
the  defendant  responsible  on  the  guarantee,  as  he  wras  not 
bound  to  take  a  portion  of  his  contract.  12  Cal.  171,  172. 

A  jury  cannot  give  compensation  for  loss  of  time,  remu 
neration  for  wages  paid,  etc.,  unless  there  is  an  allegation  in 
the  complaint  as  to  these  matters.  12  Cal.  172. 

SEC.  86.  Suit  was  brought  on  an  agreement  for  the  sale  of 
certain  cattle.  This  agreement  was  evidenced  by  a  memo 
randum  in  this  form:  "Jan.  24th,  1860.  Sold  to  Michael 
Malier,  forty  head  of  heifers,  two  years  old  in  spring, 


CONTRACTS  PARTICULARIZED,    WHAT  CONSTITUTES,    ETC.      77 

to  be  delivered  to  him  as  soon  as  we  can  collect  them 
up  off  the  plains — three  weeks  at  the  furthest— American 
heifers.  The  title  we  guarantee.  C.  &  J.  Kiley."  The  sum 
of  abouf?  one  thousand  dollars  was  the  consideration  of  this 
contract,  it  being  the  price  agreed  on  and  paid  for  the 
cattle.  The  complaint  avers  the  breach  of  this  agreement 
to  deliver  the  cattle.  The  common  counts  are  also  added. 
The  court  instructed  the  jury,  if  the  defendants  did  not 
have  the  cattle  ready  for  delivery  at  the  time  mentioned  in- 
the  agreement,  they  should  find  for  the  plaintiff,  and  in  as 
sessing  the  damages,  they  might  find  the  amount  of  the 
purchase  money  and  ten  per  cent,  interest,  or  they  might 
find  the  highest  market  price  of  the  cattle  to  the  time  of 
trial.  We  think  there  was  no  error  in  this  instruction.  It 
affirms  the  doctrine  in  Davovich  vs.  Emeric,  (12  Cal.  171), 
and  (Sedg.  on  Dam.  264).  17  Cal.  415,  416. 

SEC.  87.  The  law  is  well  settled,  that  where  a  contract 
for  service  is  made  for  a  fixed  period,  if  the  employer  dis 
charge  the  servant  before  its  termination,  without  good 
cause,  he  is  still  liable,  and  the  servant  may  recover  the 
stipulated  wages.  Thus,  where  the  steamer  owned  by  the 
defendant,  upon  which  the  plaintiff  was  employed  as  stew 
ard,  was  laid  up  by  the  defendant  in  pursuance  of  a  contract 
made  by  him  to  that  effect  with  other  parties  ;  but  the  de 
fendant  did  not  notify  the  plaintiff 'that  he  should  no  longer 
employ  him,  and  the  plaintiff  continued  at  all  times  ready 
to  perform  the  service  required  by  the  contract  between 
him  and  the  defendant ;  the  mere  laying  up  of  the  steamer 
did  not  of  course  terminate  the  relation  of  the  defendant  as 
employer,  or  release  him  from  his  obligations  to  the  stew 
ard.  And  even  had  he  discharged  the  steward,  his  liability 
would  have  continued,  there  having  been  no  cause  arising 
from  the  latter's  conduct  for  the  proceeding.  19  Cal.  292. 

SEC.  88.  In  an  action  to  recover  the  value  of  services, 
and  work  and  labor  performed  under  a  contract,  the  plaint 
iff  has  the  right  to  prove  the  value  of  the  services  of  an  as 
sistant  employed  by  him,  and  who  performed  the  same  work 
plaintiff  contracted  to  do,  unless  it  appear  by  the  nature  or 
terms  of  the  employment  that  the  services  of  a  particular 
person  was  contracted  for,  and  that  no  other  person  could, 


78  JUSTICES'  TREATISE. 

under  the  contract,  fill  the  place  of  the  employe".     24  Cal. 
399. 


CHAPTER   V. 

CONTKACT  OF  ACCOUNT. 

« 

SECTION  1.  An  account,  in  writing,  examined  and  signed 
by  the  parties,  will  be  deemed  a  stated  account,  notwith 
standing  it  contains  the  ordinary  preliminary  clause  that 
errors  are  excepted.  9  Cal.  360. 

SEC.  2.  The  right  to  sue  a  county  is  not  limited  to  cases 
of  tort,  malfeasance,  etc., -but  is  given  in  every  case  of  ac 
count,  after  presentation  to,  and  rejection  by,  the  board  of 
supervisors.  6  Cal.  256. 

An  action  of  assumpsit  is  the  proper  remedy  on  an  account 
against  a  county  which  has  been  rejected  by  the  board  of 
supervisors.  6  Cal.  255. 

SEC.  3.  Where  in  a  suit  on  an  account  stated,  the  only 
evidence  was  that  of  a  witness  who  said  defendant,  on  pre 
sentation  of  the  account,  admitted  it  to  be  correct  and  prom 
ised  to  pay  it,  and  the  court  charged  the  jury,  that  if  they 
believed  the  testimony  of  the  witness,  they  must  find  for  the 
plaintiff  the  amount  claimed,  and  they  so  found :  Held,  that 
the  instruction  did  not  prejudice  defendant,  as  but  one  ver 
dict  could  have  been  rendered  under  the  evidence.  Terry 
vs.  Sickles,  13  Cal.  427. 

SEC.  4.  To  sustain  an  action  on  an  account  stated,  it  must 
be  shown  there  was  a  demand  in  favor  of  plaintiff  acceded 
to  by  defendant;  and  if  defendant  does  not  object  to  the 
account  as  presented,  within  a  reasonable  time,  his  silence 
will  be  an  admission  of  its  correctness.  Terry  vs.  Sickles,  13 
Cal.  427. 

SEC.  5.  In  such  action,  evidence  that  the  items  of  the 
account  are  overcharged  is  not  admissible,  the  complaint 
being  verified  and  the  answer  not  averring  fraud  or  mistake 
in  the  accounting.  Terry  vs.  Sickles,  13  Cal.  427. 

SEC.  6.  Account  with  Memorandum.— An  account  stated, 
with  a  memorandum  ' '  payable  in  gold  coin  (United  States) 
according  to  contract "  and  signed  by  the  defendant,  is  ad- 


CONTRACT  OF  ACCOUNT.  79 

missible  as  written  evidence  of  a  contract  on  the  part  of  the 
defendant  to  pay  in  gold  coin.     33  Cal.  694. 

SEC.  7.  Where  accounts  bear  upon  their  face  the  words 
' '  audited  and  approved  "  and  ' '  certified  to  be  correct " :  Held, 
that  this  is  language  sufficient  to  create  them  instruments  of 
writing  within  the  meaning  of  the  statute.  5  Cal.  57. 

SEC.  8.  Where  an  account  has  been  stated  by  the  plaint 
iff,  charging  interest  both  on  the  debt  and  the  payment  and 
rendered  to  the  defendant,  and  no  objections  made  thereto 
within  a  reasonable  time,  it  is  the  same  as  an  agreement  that 
the  interest  should  be  computed  accordingly.  3  Cal.  231. 

SEC.  9.  And  when  the  party  who  seeks  to  go  behind  the 
stated  account,  goes  into  particulars  and  specifies  the  articles 
improperly  charged  or  omitted,  he  is  confined  to  those  items, 
and  the  remainder  of  the  account  must  stand.  3  Cal.  231. 

SEC.  10.  An  account  stated  alters  the  name  of  the  orig 
inal  indebtedness  and  constitutes  a  new  promise  or  under 
taking.  33  Cal.  694. 

SEC.  11.  Mutual  accounts  are  made  up  of  matters  of  set- 
off,  where  there  is  an  existing  debt  on  the  one  side  which 
constitutes  a  credit  on  the  other,  or  where  there  is  an  ex 
press  or  implied  understanding  that  mutual  debts  shall  be 
satisfied  or  set  off,  pro  tanto,  between  the  parties.  30  Cal.  127. 

SEC.  12.  A  payment,  whether  it  be  made  in  money  or  of 
an  article  of  personal  property  of  a  stipulated  value,  made 
on  an  account  and  intended  as  a  payment,  and  not  as  a  set-' 
off,  pro  tanto,  does  not  make  an  account  mutual.  30  Cal.  127. 

SEC.  13.  Where  money  is  delivered  by  one  party  to  the 
other,  and  credited  on  account  by  him  who  received  it,  it 
will  be  treated  as  intended  as  a  payment,  unless  it  is  shown 
to  have  been  delivered  as  a  loan,  but  not  so  with  personal 
property,  even  though  a  value  be  affixed  thereto.  30  Cal. 
127. 

SEC.  14.  When  Property  Received  and  Credited  makes 
Account  Mutual. — The  defendants",  being  indebted  to  the 
plaintiffs  on  account,  delivered  them  an  article  of  personal 
property,  for  which  the  latter  gave  the  former  credit  at  a 
specified  valuation :  Held,  that  thereby  the  account  consisted 
of  reciprocal  demands  between  them.  30  Cal.  126. 

SEC.  15.     Striking  of  a  Balance  on  Accounts,  where  there  are 


80 


JUSTICES    TREATISE. 


Demands  on  each  Side. — The  striking  of  a  balance  converts 
the  set-off  into  a  payment,  and  from  that  time  the  statute  of 
limitations  commences  running.  30  Cal.  126. 

SEC.  16.  Until  a  balance  is  struck  a  mutual  account  is 
open  and  current.  30  Cal.  126. 

SEC.  17.  Where  one  party  is  selling  the  other  goods  from 
time  to  time,  and  charging  the  same,  and  the  other  gives 
him  money  which  he  credits  on  the  account  as  a  payment, 
this  credit  does  not  make  the  account  a  mutual  one  within 
the  meaning  of  the  eighteenth  section  of  the  statute  of 
limitations.  35  Qal.  122. 


CHAPTER   VI. 
CONTBACT  OF  AGENTS. 


SECS. 

OF  THE  DIFFERENT  KINDS  OF 

AGENTS 1-13 

OF  THEIK  APPOINTMENT  AND 
THE  REVOCATION  OF  THEIE 
POWER  . .  .  14-33 


SECS. 


THE  EXTENT  OF  AUTHORITY  AND 

LIABILITY  or  PRINCIPAL.  . .   34-43 

OF  FACTORS 44-51 

WHEN  THE  AGENT  is  PERSONAL 
LY  LIABLE  ON  HIS  CONTRACT  52-59 


Different  Kinds  of  Agents. 

SECTION  1.  An  agent  may  make  contracts  which  will  be 
equally  binding  on  his  principal  as  if  made  by  the  principal 
himself,  but  it  is  necessary  that  the  principal  has  ability 
himself  to  do  all  acts  which  he  confers  upon  another  to  do. 
An  agent  is  therefore  defined  to  be  one  employed  by  any 
person,  competent  to  do  any  act  for  himself,  to  do  it  for 
him.  1  Story's  Agency,  Sec.  6. 

SEC.  2.  The  employer  is  called  the  principal  and  the  em 
ployment  an  agency.  Any  person  who  is  not  actually  dis 
abled  by  weakness  of  mind  or  want  of  understanding,  may 
be  an  agent.  What  wotfld  constitute  a  legal  disability  to 
contract  for  himself,  will  not  incapacitate  him  from  becom 
ing  an  agent — thus,  infants,  slaves  or  married  women,  may 
act  as  agents.  1  Story's  Agency,  Sec.  7. 

SEC.  3.  To  constitute  a  valid  agency,  where  property  is 
its  subject,  it  is  not  essential  that  the  principal  should  hold 


CONTRACT   OF   AGENTS.  81 

the  legal  or  equitable  title  or  more  than  a  naked  claim  of 
title;  it  may  be  created  for  the  acquisition  of  title,  either 
legal  or  equitable,  or  for  the  protection  of  an  asserted  title. 
Bardenbergh  vs.  Bacon,  33  Cal.  356. 

SEC.  4.  The  authority  of  an  agent  may  be  conferred  ver 
bally,  and  it  may  be  implied  from  the  acts  of  the  parties. 
An  implied  agency,  is  where  one  suffers  another  to  do  acts 
in  his  name,  to  buy  goods  or  sell  them,  to  sign  his  name  to 
notes  or  checks;  he  is  presumed  to  have  given  him  an  au 
thority  to  do  so,  and  his  acts  will  bind  him.  Where,  how 
ever,  some  act  is  required  to  be  executed  by  a  sealed  instru 
ment,  the  authority  must  be  given,  in  writing,  under  seal. 
Story  on  Agency,  49. 

SEC.  5.  When  the  authority  to  the  agent  is  in  writing, 
the  written  instructions  must  be  strictly  followed. 

SEC.  6.  A  special  agency,  is  an  agency  to  do  a  special 
or  single  act,  as  to  sell  my  horse,  with  or  without  warranty, 
or  to  purchase  a  horse  for  me.  If  a  special  agent  exceed 
his  authority,  the  principal  is  not  bound  by  his  acts,  unless 
the  principal  has  held  him  out  as  his  authorized  agent  for 
other  purposes.  The  question  for  the  justice  in  such  cases 
is,  what  were  the  acts  of  the  agent  and  principal  in  other 
transactions  of  a  similar  kind,  or  whether  their  business  re 
lations  were  such  as  to  justify  a  man  of  reasonable  prudence 
to  infer  the  power  of  the  agent  to  act.  One  who  deals  with 
a  special  agent  is  bound  to  acquaint  himself  with  the  extent 
of  his  authority.  Story  on  Agency,  Sec.  126. 

SEC.  7.  A  general  agent,  is  one  who  has  a  general  author 
ity.  His  power  is  not  confined  to  particular  acts,  but  ex 
tends  to  all  acts  which  the  principal  himself,  if  present, 
might  do ;  and  the  principal  is  bound  by  all  his  acts  within 
the  scope  of  his  authority.  Story  on  Agency,  Sec.  126. 

SEC.  8.  The  principal  is  bound  by 'all  the  representations 
of  his  agent,  in  any  trade  or  transaction,  which  his  agent 
may  make.  As,  when  the  agent  in  selling  a  horse,  repre 
sents  him  as  sound  or  a  safe  horse  in  harness;  if  the  horse 
prove  otherwise,  the  principal  is  responsible  for  the  dam 
ages.  Therefore,  the  representations,  admissions  and  con 
cealments,  of  an  agent  made  at  the  time,  and  constituting  a 
part  of  the  transaction,  and  being  an  inducement  to  the  con- 
11 


82  JUSTICES'  TREATISE. 

tract,  are  binding  upon  the  principal,  though  if  made  at  an 
other  time,  and  without  forming  a  part  of  the  transaction, 
are  not  binding.  6  Hill's  Eeports,  336. 

SEC.  9.  An  agent  cannot  delegate  his  authority  to  an 
other,  for  it  is  a  maxim  of  law,  that  delegated  power  cannot 
be  transferred  by  the  delegate.  He  must  transact  the  busi 
ness  intrusted  to  him  in  the  name  of  his  principal,  or  the 
contract  will  not  bind  the  principal,  but  will  become  bind 
ing  upon  himself.  Coweris  Treatise,  Sec.  160. 

SEC.  10.  An  agent,  whether  he  be  a  mercantile  agent,  or 
a  mere  domestic  servant,  may,  in  general,  be .  appointed  by 
mere  words  (see  Stackpole  vs.  Arnold,  11  Mass.  27),  and 
writing  is  not  necessary  to  empower  him  to  act,  even  for  the 
purposes  described  in  the  twelfth  and  thirteenth  sections  of 
the  statute  of  frauds  (see  Hittell,  Sees.  3156,  3157),  viz:  to 
charge  a  person  to  answer  for  the  debt  of  another,  or  upon 
an  agreement  in  consideration  of  marriage,  or  upon  a  con- 
•  tract  or  sale  of  premises  or  an  interest  therein,  or  upon  a 
contract  not  to  be  performed  within  one  year;  it  being  held, 
that  although  these  contracts  are  to  be  in  writing  and  signed, 
yet  an  agent  may  sign  them  without  having  a  written  author 
ity.  Coles  vs.  Trecotlick,  9  Yes.  234,  250.  Nor  is  a  written 
appointment  necessary  to  authorize  an  agent  to  sign  an 
agreement  for  the  purchase  of  goods,  under  the  thirteenth 
section  of  the  act.  Webb  vs.  Browning,  14  Mo.  354;  Story 
on  Agency,  51,  52;  Dunlop's  Paley's  Agency,  159,  160. 

SEC.  11.  An  agent  for  the  sale  of  goods  sometimes  acts 
under  a  del  credere  commission;  that  is,  for  a  higher  reward 
than  is  usually  given,  he  becomes  responsible  to  his  princi 
pal  for  the  solvency  of  the  vendee ;  or,  in  other  words,  he 
guarantees,  in  every  case  of  sale,  the  due  payment  of  the 
price  of  the  goods  sold.  See  Morris  vs.  Cleasby,  4,  M.  &  S. 
574. 

SEC.  12.  The  undertaking  of  the  del  credere  agent,  is  an 
original,  absolute  and  independent,  engagement,  entirely  be 
tween  the  principal  and  the  agent,  before  the  sale  and  sep 
arate  from  it,  and  of  course  before  any  debt  has  accrued 
from  the  purchaser.  It  does  not  affect  the  ordinary  relations 
between  the  principal  or  the  agent  and  the  purchaser.  See 
Swan  vs.  Nesmith,  1  Pick.  220;  Leverick  vs.  Meigs,  1  Cowen, 
645. 


CONTRACT  OF  AGENTS.  83 

SEC.  13.  The  del  credere  has  no  different  power  over  the 
property  of  his  principal  or  the  avails  of  it  than  an  ordinary 
agent.  He  has  his  lien  for  the  additional  charges  grow 
ing  out  of  his  extraordinary  responsibility,  but  it  differs 
only  in  degree  from  that  of  other  agents.  Thompson  vs. 
Perkins,  3  Mason,  232,  242. 

Appointment  of  Agent  and  Revocation  of  his  Power. 

SEC.  14.  Although  it  would  appear  to  be  now  settled  that 
the  liability  of  a  del  credere  agent  is  merely  collateral  to  that 
of  the  vendee  (5  Hill.,  N.  Y.,  458,  ante  195,  Note),  it  is  ne 
cessary  that  his  engagement  should  be  in  writing  (Coutourier 
vs.  Hastie,  8  Exch.  40).  5  Hill.  (N.  Y.)  458. 

SEC.  15.  But  a  deed  cannot  be  executed  by  an  agent,  so 
as  to  bind  his  principal,  unless  the  authority  to  execute  it 
be  conferred  by  deed  (Appleton  vs.  Sinks,  5  East.  148),  or  is 
executed  at  the  request  of  the  principal,  in  his  presence,  in 
which  case  it  would  be  a  valid  execution.  Thus,  a  deed 
signed  in  the  presence  and  at  the  request  of  P,  and  in  the 
presence  of  an  attesting  witness,  in  these  terms :  "  P  by  M ;" 
the  whole  deed,  including  the  signature,  being  written  by 
M,  is  properly  executed  as  the  deed  of  P.  Gardiner  vs. 
Gardiner,  5  Gush.  483.  To  hold  that  this  might  not  be  a 
good  execution,  Mr.  Chief  Justice  Shaw  remarked,  in  this 
case,  "would  be  to  decide,  that  a  person  having  a  clear  mind 
and  full  capacity,  but,  through  physical  inability,  incapable 
of  making  a  mark,  could  never  make  a  conveyance  or  exe 
cute  a  deed ;  for  the  same  incapacity  to  sign  and  seal  the 
principal  deed,  would  prevent  him  executing  a  letter  of  at 
torney,  under  seal.  See  Wood  vs.  Goodridge,  6  Gush.  121, 
126.  So,  for  the  purpose  of  creating  a  freehold  or  leasehold 
interest,  or  any  uncertain  interest  (other  than  leases  for  a 
longer  term  than  one  year),  in  tenements,  or  of  surrendering 
the  same  (except  copyhold  interests),  the  authority  of  the 
agent  must  be  in  writing.  Hittett,  Sec.  3150.  The  author 
ity  to  contract  for  a  lease  or  interest  in  land  need  not  be  in 
writing,  though  the  authority  to  sign  the  lease  or  instrument 
by  which  the  interest  passes,  must  be  so.  5  Hill  (N.  Y.), 
107.  And  so,  where  the  authority  of  the  agent  is  conferred 
by  a  corporation,  it  must,  in  general,  be  by  writing,  under 


84  JUSTICES'  TREATISE. 

their  common  seal  (Bex  vs.  Biggs,  3  P.  Corns.  425),  although 
there  may  be  cases  in  which,  for  the  benefit  of  trading  cor 
porations,  this  rule  would  be,  in  some  measure,  relaxed. 
Russell  on  Factors,  11-13  ;  Yerby  vs.  Grigsby,  9  Leigh,  387. 

SEC.  16.  There  are  cases,  moreover,  in  which  an  author 
ity  may  be  implied,  and  no  authority  wras  ever  given,  in  fact. 
Thus,  if  the  owner  of  a  horse  send  it  to  a  common  repository 
for  the  sale  of  horses,  or  if  the  proprietor  of  goods  send  them 
to  an  auction,  room  or  to  a  broker 'whose  ordinary  business 
it  is  to  sell  goods  of  that  description,  the  owner  will  be 
bound  by  a  sale  to  a  bona  fide  purchaser,  although  made 
without  his  express  consent,  because  an  authority  to  sell 
shall  be  presumed  against  him.  See  Pickering  vs.  Busk-, 
15  East,  38,  45. 

SEC.  17.  And  so,  if  a  coachman  go  in  his  master's  livery 
and  hire  horses  in  his  name,  which  his  master  uses,  the 
latter  will  be  bound  to  pay  for  the  hire  of  the  horses ;  al 
though  he  has  agreed  with  the  coachman  to  pay  him  a 
large  salary  to  provide  horses,  unless  the  owner  of  the 
horses  had  some  notice  that  the  coachman  hired  them  on 
his  own  account,  and  not  for  his  master.  Rimell  vs.  Sam- 
payo,  1  C.  &  P.  254. 

SEC.  18.  Wherever  one  of  two  innocent  persons  must 
suffer  by  the  acts  of  a  third,  he  who  has  enabled  such  third 
person  to  occasion  the  loss,  must  sustain  it.  Lickbarrow 
vs.  Mason,  2  T.  R.  70. 

SEC.  19.  So,  an  authority  on  the  part  of  the  agent  will 
be  implied,  even  in  cases  which  are  not  within  the  scope  of 
his  ordinary  business  :  provided,  it  be  shown  that  he  has,  on 
former  occasions,  exercised  the  same  authority,  and  that 
his  principal  knew  or  had  the  means  of  knowing  that 
fact.  Davidson  vs.  Stanley,  3  Scott  N.  R.  49.  It  is  not 
necessary,  in  order  to  constitute  a  general  agent,  that  he 
should  have  done  before  an  act,  in  specie,  the  same  with  that 
in  question.  If  he  have  usually  done  things  of  the  same 
general  character  and  effect,  with  the  assent  of  his  princi 
pal,  that  is  enough.  Bank  of  Lake  Erie  vs.  Norton,  1  Hill 
(N.  Y.),  502. 

SEC.  20.  A  contract  made  by  an  agent,  as  such,  is,  in 
law,  the  contract  of  the  principal.  A  sale  by  a  factor  con- 


CONTRACTS  OF  AGENTS.  .  85 

stitutes  a  contract  between  the  principal  and  purchaser. 
Golden  vs.  Levy,  1  Domat,  528 ;  15  Me.  340 ;  4  Greenl.  542. 
Qui  facit  per  alium-  facit  per  se.  The  agent  is  considered 
merely  as  the  medium  by  which  the  contract  is  effected; 
and  his  assent  is  merely  the  assent  of  his  principal.  Where 
a  person  is  employed  by  an  agent  he  may  call  upon  the 
principal  for  payment  for  the  services  rendered,  and  he  may 
do  so,  although  he  knows  that  the  agent  has  discharged 
the  demand  to  the  principal  and  received  the  amount,  unless 
he  has  agreed  to  discharge  the  principal  and  rely  upon  the 
responsibility  of  the  agent.  Lincoln  vs.  Battelle,  6  Wend. 
475. 

SEC.  21.  He  need  not  therefore  be  a  person  sui  juris; 
and  hence,  infants,  married  women,  persons  attainted,  or 
outlawed,  or  aliens,  are  competent  to  act  as  agents. 

SEC.  22.  But  a  person  incapacitated  to  purchase  in  his 
own  name  by  reason  of  his  standing  in  a  confidential  rela 
tion  to  the  seller,  cannot  purchase  as  the  agent  of  another. 
Hawley  vs.  Cramer,  4  Cowen,  717. 

SEC.  23.     An  agent's  authority  may  be  determined  either: 

1st.  By  the  express  revocation  thereof  by  the  principal. 
Dunlap's  Paley's  Agency,  184,  et  seq.  A  power  of  attorney 
by  deed  may  be  revoked  by  a  parol  order.  Brooksliire  vs. 
Brooksliire,  8  Ired.  84.  Or  by  renunciation  of  the  agency  4 
on  the  part  of  the  agent  himself.  Russell  on  Factors,  311, 
314. 

2d.  By  the  death  or  bankruptcy  of  the  principal  or  agent. 
City  Council  vs.  Duncan,  3  Brevard,  386;  McDonald  vs. 
Black,  20  Ohio,  185. 

3d.  By  efflux  of  time,  where  a  specific  period  is  fixed, 
either  by  express  agreement  or  by  the  usage  of  trade,  for 
the  execution  of  the  act  to  be  done  by  the  agent.  Story  on 
Agency,  Sec.  480. 

4th.  By  the  execution  of  his  commission  whereby  the 
agent  becomes  functus  qfficio.  Blackburn  vs.  Sclioles,  2 
Camp,  341,  343;  Smith  vs.  Bice,  1  Bailey,  648.  There  are 
other  ways  in  which  the  authority  of  an  agent  may  be  deter 
mined,  as  by  marriage  of  the  principal  being  a  femme  sole, 
by  marriage  of  a  femme  sole  agent,  by  the  lunacy  or  insanity 
of  the  agent,  by  renunciation  by  the  agent,  by  the  bank- 


86       ,  JUSTICES'  TREATISE. 

ruptcy  of  the  principal  and  by  a  sale  of  the  subject  matter 
of  the  agency  by  the  principal.     Story  on  Agency,  185. 

SEC.  24.  But  the  mere  happening  of  the  above  events 
will  not  in  each  case,  operate  per  se  as  a  complete  revocation 
of  the  agent's  authority.  Thus,  if  the  principal  counter 
mand  the  authority  of  the  agent,  such  countermand  will  not 
take  effect  as  to  third  persons  until  it  is  make  known  to 
them. 

SEC.  25.  So,  where  a  servant  had  power  to  draw  bills  on 
his  master's  name,  and  was  afterwards  turned  out  of  his 
service,  it  was  ruled:  "that  if  he  draws  a  bill  in  so  little  time 
that  the  world  cannot  take  notice  of  his  being  out  of  service, 
or  if  he  were  a  long  time  out  of  his  service,  but  that  kept  so 
secret  that  the  world  cannot  take  notice  of  it,  the  bills  in 

those  cases  shall  bind  the  master.     vs.  Harrison,  12 

Mod.  346. 

SEC.  26.  So,  where  a  servant  who  had  been  used  to  raise, 
receive  and  pay,  money  for  his  master,  borrowed  two  hun 
dred  guineas  in  his  master's  name,  after  he  had  quitted  the 
service ;  the  lender,  who  did  not  know  of  his  discharge,  re 
covered  against  the  master  by  the  direction  of  Kneeling,  C. 
J.,  and  this  direction  was  approved  of  by  the  whole  court, 
on  a  motion  for  a  new  trial.  Monk  vs.  Clayton,  Mol.  270. 

SEC.  27.  And  it  is  said,  that  a  sale  or  purchase  by  an 
agent,  even  after  the  death  of  his  principal,  if  made  without 
notice  of  that  fact,  will  bind  the  representatives  of  the  latter. 
Story  on  Agency,  Sec.  496;  See  Cassadyvs.McKinsey,  4  Watts 
&  Serg.  282. 

SEC.  28.  Nor  is  the  authority  given  to  an  agent  revoka- 
ble  in  all  cases  at  the  mere  will  of  the  party  who  conferred 
it.  Thus,  it  is  not  in  general  revocable  after  a  part  executed 
thereof  by  the  agent.  Russell  on  Factors,  312. 

SEC.  29.  As  between  the  principal  and  agent,  Mr.  Jus 
tice  Ware,  in  United  States  vs.  Jarvis  (Davies,  287),  held,  that 
the  former  may  at  any  time,  revoke  and  withdraw  the  power 
of  his  agent  at  his  pleasure,  and  without  notice.  But  if  the 
agent  has  entered  on  the  business  of  the  agency,  and  .has 
fairly,  in  the  ordinary  course  of  business  and  in  good  faith, 
entered  into  any  engagements,  or  come  under  any  liabilities 


CONTRACTS  OF  AGENTS.  87 

in  the  prosecution  of  the  proper  business  of  the  principal, 
before  notice  of  the  revocation  of  the  agency,  the  principal 
will  be  bound  to  indemnify  him,  unless  the  agent  had  given 
just  cause  for  such  revocation.  In  the  same  manner  the 
agent  may,  at  any  time,  renounce  the  agency,  but  then  he 
is  bound  to  give  the  principal  reasonable  notice  of  his  inten 
tion  before  hand,  to  enable  him  to  procure  another  agent; 
and  if  he  does  not,  he  will  be  bound  to  indemnify  the  prin 
cipal  for  any  loss  he  may  sustain. 

SEC.  30.  And  so,  if  there  be  an  interest  coupled  with  the 
authority;  that  is,  if  an  agreement  be  entered  into  on  a  suf 
ficient  consideration,  whereby  an  authority  is  given,  for  the 
purpose  of  securing  some  benefit  to  the  donee  of  the  au 
thority,  such  an  authority  is  irrevocable.  Briston  vs.  Tay 
lor,  2  Stark.  50,  51.  Whether  a  power,  coupled  with  an 
interest,  is  revoked  by  the  death  of  the  person  giving  the 
authority,  see  the  reasoning  of  Marshall,  C.  J.,  in  Hunt  vs. 
Bousmanieo  (8  Wheat.  174),  where  he  says:  "  We  held  it  to 
be  clear,  that  the  interest  which  can  protect  a  power  after 
the  death  of  a  person  who  creates  it,  must  be  an  interest  in 
the  thing  itself."  "The  interest  or  title  in  the  thing,  being 
vested  in  the  person  who  gives  the  power,  remains  in  him, 
unless  it  be  conveyed  with  the  power,  and  can  pass  out  of 
him  only  by  a  regular  act,  in  his  own  name;  the  act  of  the 
substitute,  therefore,  which  in  such  a  case,  is  the  act  of  the 
principal,  to  be  equally  effectual,  must  be  in  his  name,  must 
be  such'  an  act  as  the  principal  himself  would  be  capable  of 
performing,  and  which  would  be  valid,  if  performed  by  him ; 
such  a  power  necessarily  ends  with  the  life  of  the  person 
making  it.  But  if  the  interest  or  estate  passes  with  the 
power,  and  vests  in  the  person  by  whom  the  power  is  to  be 
executed,  such  person  acts  in  his  own  name.  10  N.  Hamp. 
156;  3  Watts  &  Serg.  14. 

SEC.  31.  It  has,  however,  been  decided,  that  where  a  fac 
tor,  to  whom  goods  have  been  consigned  generally  for  sale, 
has  subsequently  made  advances  to  his  principal,  on  the 
credit  thereof,  which  advances  the  latter  has,  on  request, 
neglected  to  repay,  the  factor's  authority  to  sell  does  not  be 
come  by  reason  of  such  unpaid  advances  irrevocable  as  an 
authority  coupled  with  an  interest,  so  as  to  entitle  him  to 


JUSTICES    TREATISE. 

sell  the  goods,  contrary  to  the  orders  of  the  principal. 
Smart  vs.  Sanders,  5  C.  B.  895. 

SEC.  32.  But  it  has  been  held  in  Massachusetts,  that  a 
commission  merchant  who  has  received  goods  to  sell  at  a 
certain  limited  price  and  has  made  advances  upon  them,  has 
a  right  to  reimburse  himself  by  selling  them  at  the  fair  mar 
ket  price,  though  below  the  limit,  if  the  consignor  has  re 
fused,  upon  application  and  after  a  reasonable  time,  to  repay 
the  advances.  Parker  vs.  Branclier,  22  Pick.  40.  So  in 
New  Hampshire.  Frotliingliam  vs.  Everton,  12  N.  Hamp. 
239. 

SEC.  33.  A  factor  who  makes  advances  on  goods  con 
signed  to  him  may  maintain  an  action,  before  the  goods  are 
sold,  to  recover  the  money  advanced,  unless  there  is  an 
agreement  to  the  contrary.  Upliam  vs.  Lafavour,  11  Mete. 
174;  Story  on  Agency,  58.  If  one  voluntarily  undertakes 
to  do  a  particular  piece  of  business  for  another,  though 
he  acts  gratuitously,  he  is  bound  to  obey  the  orders  of  his 
principal,  and  is  liable  in  damages  for  the  consequence  of  a 
breach  of  instruction.  Walker  vs.  Smith,  1  Wash.  C.  C. 
152.  A  promise  of  indemnity  to  an  agent  is  implied  from 
his  employment  as  such.  Powel  vs.  Newbury,  19  Johns.  284. 

Extent  of  Authority  and  Liability  of  the  Principal . 

SEC.  34.  If  a  servant  or  agent  be  accredited  and  invested 
by  his  master  with  authority  to  act  for  him  in  all  his  busi 
ness  of  a  particular  kind,  or  if  the  agent  being  himself  en 
gaged  in  a  particular  trade  or  business,  he  will  in  each  case 
be  held  to  be,  with  reference  to  his  employment,  a  general 
agent  (Russell  on  factors,  75),  and  the  public  having  no 
means  of  knowing  what  are — in  any  particular  case  within 
the  general  scope  of  the  agent's  powers — the  wishes  and 
directions  of  the  principal,  the  latter  will  be  liable,  even 
although  his  orders  be  violated.  1  Mete.  193 ;  6  How. 
(Mss.),  217,  221. 

SEC.  35.  In  such  a  case,  the  principal,  having  for  his  own 
convenience  induced  the  public  to  consider  that  his  agent 
was  possessed  of  general  powers,  is  bound  by  the  exercise, 
on  the  agent's  part,  of  the  authority  which  he  has  thus 
allowed  him  to  assume. 


CONTKACTS  OF  AGENTS.  89 

SEC.  36.  Where  the  agent,  on  behalf  of  his  principal, 
performs  an  unauthorized  act,  yet  if  the  principal  has  put 
the  agent  in  a  position  to  mislead  innocent  parties,  he  is 
responsible  to  them.  Davidson  vs.  Dallas,  8  Cal.  227. 

SEC.  37.  The  statement  or  representations  of  an  agent 
made  at  the  time  of  a  transaction  which  is  within  the  scope 
of  his  authority,  is  evidence  against  the  principal  himself. 
Nedy  vs.  Naglee,  23  Cal.  152. 

SEC.  38.  Act  beyond  Powe)- of  Agency. — The  agent  cannot, 
in  the  exercise  of  the  power  delegated,  bind  the  principal 
by  any  act  beyond  the  power  or  beside  it,  though  it  is  com 
petent  for  him  to  perform  such  subordinate  acts  as  are 
usually  incident  to  or  necessary  to  effectuate  the  object  ex 
pressed.  Slum  vs.  jRo&erfccm,  24  Cal.  127. 

SEC.  39.  But  there  is  a  distinction  to  be  observed  between 
the  authority  of  a  special  agent,  which  the  person  dealing 
with  him  not  only  has  a  right,  but  is  bound  to  know,  and 
private  instructions  given  him  respecting  the  mode  and  man 
ner  of  executing  his  agency,  intended  to  be  kept  secret,  and 
not  communicated  to  those  with  whom  he  may  deal,  con 
cerning  which  it  would  of  course  be  useless  to  inquire. 
Such  private  instructions  are  not  to  be  regarded  as  limitations 
upon  his  authority;  and  notwithstanding  he  may  disregard 
them,  his  act,  if  otherwise  within  the  scope  of  his  agency, 
will  be  valid  and  binding  on  his  employer.  This  subject  is 
clearly  and  amply  discussed  by  Parker,  Ch.  J.,  in  H.  vs. 
T.,  10  N.  Hamp.  538.  See,  also,  12  How.  (U.  S.)  358,  359. 

SEC.  40.  These  rules  have  been  illustrated  as  follows: 
If  a  person  keeping  a  livery  stable  and  having  a  horse  to 
sell,  direct  his  servant  not  to  warrant  him,  still  the  master 
will  be  liable  on  the  servant's  warranty,  because  the  latter 
was  acting  on  the  general  scope  of  his  authority,  and  the 
public  cannot  be  supposed  to  be  cognizant  of  any  private 
conversation  between  the  master  and  the  servant. 

SEC.  41.  But  if  the  owner  of  a  horse  were  to  send  a 
stranger  to  a  fair  with  express  directions  not  to  warrant  the 
horse,  and  the  latter  were  to  act  contrary  to  the  orders  given 
him,  the  purchaser  could  only  have  recourse  to  the  person 
who  actually  sold  the  horse,  because  the  servant  was  not 
12 


90  JUSTICES'  TREATISE. 

• 
acting  within  the  scope  of  his  employment.     1  Esp.  Ill; 

6  Hill,  337. 

SEC.  42.  After  notice  is  given  that  the  agency  has  ceased, 
the  principal's  liability  ceases.  This  notice  he  may  give  by 
making  known  the  contents  of  a  written  agreement  which 
terminates  the  agency.  Van  Oivzen  vs.  Star  Quartz  M.  Co., 
36  Cal.  571. 

SEC.  43.  A  party  having  notice  of  the  contents  of  a  writ 
ten  agreement  has  notice  of  its  legal  effect.  36  Cal.  571. 

Of  Factors. 

SEC.  44.  There  are  some  rules  recognized  in  relation  to 
factors  which  do  not  apply  to  ordinary  agents.  The  factor 
may  sell  his  principal's  goods  in  his  own  name ;  he  may  bring 
an  action  for  the  price  of  the  goods,  and  if  he  has  a  lien 
upon  the  price  for  his  compensation,  it  will  not  be  preju 
diced  by  any  set-off  which  the  purchaser  may  have  against 
his  principal,  and  he  may  bring  an  action  in  his  own  name 
for  injuries  to  the  goods  or  to  obtain  their  possession,  from 
one  who  has  wrongfully  taken  or  detained  them.  The  rea 
son  for  these  rules  is,  that  the  factor  has  an  interest  in  the 
goods  for  his  commissions  and  advances,  and  in  all  cases 
where  an  agent  has  an  interest  in  the  goods  coupled  with 
his  agency,  the  same  rules  will  apply  to  him.  Cowetis 
Treatise,  81. 

SEC.  45.  Factors  or  consignees  are  not  liable  to  an 
action  until  a  demand  or  instructions  to  remit.  They  are 
not  bound  to  take  upon  themselves  the  risk  of  remittance, 
but  may  await  the  orders  of  their  principals.  8  Cal.  457. 

A  demand  or  instructions  to  remit  are  necessary,  because 
until  such  demand  is  made  or  instructions  are  given,  the 
consignee  cannot  know  what  disposition  his  principal  may 
wish  to  be  made  of  the  proceeds,  whether  remitted  or  paid 
to  third  parties,  or  held  subject  to  his  orders.  8  Cal.  457. 

It  is  the  duty  of  a  consignee  to  render  an  account  of  his 
sales,  but  he  is  not  bound  to  take  upon  himself  the  risk  of 
remittance,  nor  can  he  throw  such  risk  upon  his  principal 
without  orders.  But  where  the  agreement  of  the  consignee 
is  to  sell  the  goods  and  send  the  money  to  his  principal,  as 
the  remittance  of  the  proceeds  upon  sale  enters  into  the 


I 

CONTRACTS  OF  AGENTS.  91 

agreement  upon  which  the  consignment  is  made,  there  can 
be  no  occasion  for  any  further  instructions,  or  any  demand 
to  put  the  consignee  in  default.  The  cause  of  action  accrues 
in  such  case  upon  the  neglect  of  the  consignee  to  remit  the 
proceeds  immediately  upon  the  sale,  and  no  demand  is 
necessary.  The  remittance  would  be  at  the  risk  of  the  prin 
cipal,  if  made  in  the  ordinary  and  customary  mode  by 
which  funds  are  at  the  time  transmitted.  8  Cal.  457,  458. 

SEC.  46.  Where  instructions  to  remit  are  originally  given, 
but  the  consignee  forwards  no  account  of  sales,  the  statute 
of  limitations  runs  against  the  principal,  only  from  the  time 
when  he  obtains  knowledge  of  the  sales  and  of  receipt  of 
the  proceeds  by  the  consignee.  To  hold  that  the  statute  of 
limitations  runs  against  the  principal  under  such  circum 
stances,  would  be  to  permit  the  consignee  to  take  advantage 
of  his  own  wrong.  Nor  does  the  fact  that  the  principal  had, 
at  an  earlier  period,  commenced  an  action  in  another  state, 
where  he  resided,  against  the  consignee  to  recover  the  pro 
ceeds,  averring  in  his  complaint,  upon  information  and 
belief,  that  a  sale  had  been  made,  fix  that  as  the  time  when 
the  liability  accrued,  so  far  as  the  statute  of*  limitations  is 
concerned.  8  Cal.  458. 

SEC.  47.  If  the  plaintiff  waives  the  tort,  and  sues  defend 
ants  as  factors,  they  must  be  considered  as  acting  under  his 
authority,  and  plaintiff  can  only  recover  the  net  proceeds  of 
sales  effected  by  them  after  deducting  necessary  charges  and 
commissions.  3  Cal.  463. 

SEC.  48.  Where  there  is  nothing  in  the  business  of  con 
signees  to  make  them  technical  factors,  third  parties  are  not 
bound  to  know  that  they  acted  as  factors  in  the  particular 
case.  7  Cal.  26. 

SEC.  49.  If  a  factor  is  in  possession  of  property  and 
clothed  with  the  external  evidences  of  ownership,  and  it  is 
part  of  his  usual  business  to  buy  and  sell  goods  on  his  own 
account,  such  apparent  ownership  gives  him  power  to  sell 
or  pledge.  The  rule,  as  to  the  lack  of  power  in  factors  to 
pledge  goods  of  their  principals,  is  only  applicable  where 
the  party  pledging  is  technically  a  factor,  where  his  only 
business  is  to  sell  goods  consigned  to  him  for  that  purpose, 
wherefore,  on  account  of  his  notorious  employment,  all  the 


92  JUSTICES'  TREATISE. 

world  is  charged  with  notice  that  the  goods  in  his  possession 
are  the  property  of  others,  and  that  he  has  power  only  to 
sell  them  and  no  power  to  pledge  them.  6  Cal.  385. 

SEC.  50.  The  rule  that  a  factor  cannot  pledge  the  goods 
of  his  principal  is,  in  this  state,  confined  to  technical  factors 
when  the  rights  of  third  parties  are  involved.  11  Cal.  393. 

SEC.  51.  That  a  factor  cannot  pledge,  as  security  for  the 
payment  of  his  individual  debt,  the  goods  of  his  principal 
consigned  to  him  for  sale,  has  been  the  established  doc 
trine  of  the  common  law  for  more  than  a  century.  It  was 
first  declared  in  Patterson  vs.  Fash  (2  Strange,  1178),  as 
early  as  1743,  and  has  been  uniformly  adhered  to  ever  since 
in  the  court  of  England,  except  where  it  has  been  modified 
by  acts  of  parliament.  It  is  also  the  settled  law  in  all  our 
sister  states  of  the  union,  where  the  legislature  has  not  inter 
fered  to  make  a  change.  In  this  state,  without  any  legisla 
tive  action  on  the  subject,  a  limitation  in  the  application  of 
the  doctrine  to  a  special  class  of  factors  has  been  asserted 
by  this  court,  which  we  shall  hereafter  particularly  notice. 
The  doctrine  of  the  common  law  results  from  the  fact  that 
the  factor  is  but  an  agent,  and  as  such  can  only  bind  his 
principal  when  his*  acts  are  within  the  scope  of  his  authority. 
A  power  to  sell  for  the  benefit  of  his  principal,  can  in  no 
way  be  stretched  into  a  power  to  pledge  for  his  own  benefit. 
Nor  does  it  make  any  difference  whether  the  party  taking  the 
pledge  was  ignorant  as  to  the  extent  of  the  factor's  authority 
or  that  the  factor  was  not  the  real  owner  of  the  property. 
"  Whoever  deals  with  an  agent  constituted  for  a  special  pur 
pose,"  says  Kent,  "deals  at  his  peril,  when  the  agent  passes 
the  precise  limits  of  his  power."  2  Comm.  611.  "The  doc 
trine,"  says  the  same  distinguished  jurist,  "that  a  factor 
cannot  pledge,  is  sustained  so  strictly  that  it  is  admitted  that 
he  cannot  do  it  by  indorsement  and  delivery  of  the  bill  of 
lading  any  more  than  by  delivery  of  the  goods  themselves. 
To  pledge  the  goods  of  the  principal  is  beyond  the  scope  of 
the  factor's  power;  and  every  attempt  to  do  it  under  color  of 
a  sale,  is  tortious  and  void.  If  the  pawnee  will  call  for  the 
letter  of  advice  or  make  due  inquiry  as  to  the  source  from 
whence  the  goods  came,  he  can  discover  (say  the  cases)  that 
the  possessor  held  the  goods  as  factor  and  not  as  vendee; 


CONTRACTS  OF  AGENTS.  93 

and  he  is  bound  to  know,  at  his  peril,  the  extent  of  the 
factor's  power."  See  Daubigny  vs.  Duval,  5  T.  E.,  504;  Mc- 
Oombie  vs.  Davies,  6  East,  538;  S.C.,1  East,  5;  Pickering  vs. 
Bush,  15  East,  38;  Warner  vs.  Martin,  11  How.  (U.  S.)  224; 
Kennedy  vs.  Strong,  14  Johns.  128;  Buckley  vs.  Packard, 
20  Johns.  421;  Stearns  vs.  Wilson,  3  Denio,  473;  Kinder  vs. 
£Aa?tf,  2  Mass.  398;  Odimrne  vs.  Maxcy,  13  Mass.  178;  #0^- 
WOH'VS.  JVoWe,  6  Mete.  68,  74;  J2bfam  vs.  /SW7A,  7  N.  H.  446; 
Skinner  vs.  Dodge,  4  Hen.  &  Munf.  432;  Howes  vs.  Dood- 
ridge,  1  Kob.  (Va.)  143;  Benny  vs.  Rhodes,  18  Mo.  147;  Benny 
vs.  Pegram,  18  Mo.  191;  Benito  vs.  Mosquera,  Basw.  427. 
The  limitation  in  the  application  of  the  doctrine  in  this  state 
to  which  we  have  referred,  was  first  asserted  in  Hutclnmon 
vs.  Bonrs  (6  Cal.  385).  It  was  there  held  that  the  doctrine 
is  only  applicable  where  the  party  pledging  is  "technically 
a  factor,"  that  is,  "where  his  only  business  is  to  sell  goods 
consigned  to  him  for  that  purpose."  Ifc.  Glidden  vs.  Lucas 
(7  Cal.  26),  the  same  limitation  is  recognized,  and  in  Horr 
vs.  Barker  (11  Cal.  393),  it  is  distinctly  affirmed.  In  none 
of  these  cases  are  any  authorities  cited  by  the  court  in  sup 
port  of  the  limitation.  In  the  last  case  Mr.  Justice  Burnett 
states  that  the  harshness  and  injustice  of  the  rule,  as  origi 
nally  established  in  England,  induced  the  court,  in  Hutchin- 
son  vs.  Bours,  to  confine  the  rule  to  a  technical  factor.  But 
Justices  Ellenborough  and  Le  Blanc,  from  whose  observa 
tions  in  Martin  vs.  Coles  (1  Maule  &  Selwyn,  145),  Mr. 
Justice  Burnett  concluded  that  they  considered  the  rule  a 
hard  one,  expressly  held  that  the  law  was  too  firmly  settled 
against  the  right  of  the  factor  to  pledge,  to  be  disturbed  by 
the  court.  "Perhaps,"  said  Ellenborough,  "it  would  have 
been  as  well  if  it  had  been  originally  decided  that  where  it 
was  equivocal  ^whether  a  person  was  authorized  to  act  as 
principal  or  factor,  a  pledge  made  by  such  person  free  from 
any  circumstances  of  fraud,  was  valid.  But  it  is  idle  now 
to  speculate  upon  this  subject,  since  a  long  series  of  cases 
has  decided  that  a  factor  cannot  pledge."  The  case  of  Mar-. 
1in  vs.  Coles  was  decided  in  1813,  and  "with  the  long  series 
of  cases"  which  preceded  and  have  since  followed  it,  all 
recognising  and  affirming  the  rule,  it  may  be  said  with  equal 
truth  now  as  then,  that  it  is  "idle  to  speculate"  as  to  any 


94  JUSTICES'  TEEAMSE. 

different  rule  which  might  have  been  originally  established. 
Judges  of  great  distinction  have  not  hesitated  to  declare 
their  approbation  of  the  existing  rule.  Thus,  Mr.  Chief 
Justice  Abbott,  in  Queiroz  vs.  Trueman  (3  Barn.  &  Cress. 
349),  expressed  the  opinion  that  "it  is  one  of  the  greatest 
safeguards  which  the  foreign  merchant  has  in  making  con 
signments  of  goods  to  be  sold"  in  England.  And  in  the 
same  case  Mr.  Justice  Bayley'  said,  that  he  could  not  help 
thinking  that  the  rule  had  operated  much  to  increase  the 
foreign  commerce  of  the  kingdom  by  holding  out  to  con 
signers  that  if  the  factor  went  beyond  the  authority  vested 
in  him,  it  should  not  work  a  prejudice  to  his  principal.  "I 
entirely  concur,"  continued  the  justice,  "in  saying  that  in 
my  judgment  this,  as  a  measure  of  policy,  ought  not  to  be 
altered.  The  rule  is  founded  upon  a  very  plain  reason,  viz : 
That  he  who  gives  the  credit  should  be  vigilant  in  ascertain 
ing  whether  the  paf.ty  pledging  has  or  has  not  authority  so 
to  deal  with  the  goods  ;  that  knowledge  may  always  be  ob 
tained  from  the  bill  of  lading  and  letters  of  advice."  What 
ever  doubts  may  be  expressed  by  different  judges  as  to  the 
expediency  of  the  rule  against  the  power  of  factors  to  pledge, 
there  have  been  none  as  to  the  existence  of  the  rule  as  we 
have  stated  it.  It  is  as  well  settled  as  any  rule  of  law  can 
possibly  be,  and  in  no  instance  have  we  found  any  depart 
ure  from  it,  except  in  cases  cited  from  this  court.  The  lim 
itation  sought  in  those  cases  to  be  engrafted  upon  the  doc 
trine — in  other  words,  the  distinction  sought  to  be  made  be 
tween  "a  technical  factor,"  that  is,  one  whose  "only  busi 
ness  is  to  sell  goods  consigned  to  him  for  that  purpose," 
and  a  factor  who,  at  the  same  time,  does  business  on  his 
own  account — is  not  recognized  in  any  of  the  authorities  in 
England  or  America,  but  is  repudiated,  either  expressly  or 
impliedly,  in  all  of  them  wherever  the  point  arises.  In 
Martini  vs.  Coles,  which  we  have  already  referred  to,  the 
factor,  Yds,  was  a  general  merchant,  and  as  such  had  been 
in  the  habit  of  employing  the  defendants  as  brokers  in  the 
sale  of  ~West*India  produce.  The  plaintiff  consigned  to  him 
a  quantity  of  coffee  for  sale,  and  sent  him  a  bill  of  lading 
for  the  same  in  the  usual  form,  providing  for  the  delivery 
of  the  coffee  to  him  or  his  assigns,  he  or  they  paying  freight. 


CONTRACTS  OF  AGENTS.  95 

The  factor  indorsed  the  bill  of  lading,  and  delivered  the 
goods  to  the  defendants ;  aftid  on  the  faith  of  these  and 
other  goods  placed  in  their  hands,  they  advanced  various 
sums  to  him  ;  and  at  the  time  they  had  no  knowledge  that 
the  factor  was  not  the  owner  of  the  coffee.  Trover  having 
been  brought  for  the  coffee,  the  defendants  urged  that,  as 
the  factor  was  also  a  general  merchant,  and  as  such  had 
usually  employed  them,  and  as  the  bill  of  lading  was  made 
out  to  himself,  he  might  reasonably  be  mistaken  for  the 
owner  of  the  goods.  But  the  court,  per  Le  Blanc,  J.,  said  : 
""Whether  it  might  not  originally  have  better  answered  the 
purposes  of  commerce  to  have  considered  a  person,  in  the 
situation  Of  Yos,  having  the  apparent  symbol  of  property, 
the  true  owyner  in  respect  of  that  person  who  deals  with  him 
under  an  ignorance  of  his  real  character,  is  a  question  upon 
which  it  is  now  too  late  to  speculate,  since  it  has  been  es 
tablished  by  a  series  of  decisions  that  a  factor  has  no  au 
thority  to  pledge,  whether  the.  person  to  whom  he  pledges 
has  or  has  not  a  knowledge  of  his  being  factor.  Here  Yos 
was  clearly  factor  for  the  plaintiff ;  and  the  circumstances 
of  the  goods  having  been  made  deliverable  by  the  bill  of 
lading  to  Yos  or  his  assigns,  cannot  make  any  difference, 
since  it  conveyed  to  him  no  farther  authority  over  the  goods 
than  the  party  who  consigned  them  intended  to  clothe  him 
with."  In  Kinder  vs.  Slww  (2  Mass.  398),  the  goods  of  the 
plaintiffs  were  placed  for  sale  with  one  Carter,  who  kept  a 
retail  shop.  To  raise  money,  Carter  pledged  the  goods, 
with  other  goods  of  his  own  property,  to  the  defendants, 
who  were  ignorant  of  the  plaintiff's  interest.  Trover  hav 
ing  been  brought  for  the  goods,  the  defendants  argued  that 
as  Carter  was  not  known  to  them  as  the  factor  of  the  plaint 
iffs,  and  as  they  had  no  ground  to  suspect  the  goods  to  be 
the  property  of  the  plaintiffs  or  of  any  one  else  other  than 
Carter,  who  kept  an  open  shop  in  which  these  goods  were 
exposed  to  sale  with  his  own,  they  had  a  right  to  treat  with 
him  as  the  real  owner.  But  the  court  gave  judgment  for  the 
plainliffs,  Mr.  Chief  Justice  Parsons  observing  "that  the 
court,  considering  the  question  of  importance  to  the  mercan 
tile  part  of  the  community,  had  looked  into  the  case  with 
attention,  and  were  all  of  opinion  that  a  factor  had  no  au- 


96  JUSTICES'  TREATISE. 

thority  to  pawn  goods  which  have  been  intrusted  to  him  for 
sale.  The  rights  of  the  principal  and  factor  depend  on  the 
law  merchant,  which  has  been  adopted  by  the  common  law. 
By  this  law  a  factor  is  but  the  attorney  of  his  principal, 
and  he  is  bound  to  pursue  the  powers  delegated  to  him." 
In  several  of*  the  other  cases  cited  above,  the  factor  was 
also  engaged  "in  business  on  his  own  account.  In  this 
state  there  are  few  persons  acting  as  factors  who  do  not  at 
the  same  time  have  some  business  of  their  own  in  buying 
and  selling;  and  the  practical  effect  of  the  decision  in 
Huicliinson  vs.  BOUTS,  if  sustained,  would  be  to  establish  as 
a  general  rule  that  a  factor  may  pledge  without  authority  the 
goods  of  his  principal  for  his  own  debt,  and  to  make  the 
very  limited  class  of  "technical  factors"  a  mere  exception 
to  that  rule.  The  principle  upon  which  the  decision  in 
Hutcliimon  vs.  Bours  proceeds,  as  we  infer  from  the  facts  of 
the  case,  is  that  the  possession  of  personal  property  by  a 
person  engaged  in  business  on  his  own  account,  is  sufficient 
evidence  of  his  ownership  to  protect  parties  dealing  with 
him  as  the  real  owner.  For  this  principle  there  is  no  war 
rant  in  the  law.  Possession  of  personal  property  is  only 
prima  facie  evidence  of  ownership,  and  never  prevails 
against  the  true  owner,  except  with  reference  to  negotiable 
instruments  and  whatever  conies  under  the  general  denom 
ination  of  currency.  "The  law  is  clearly  laid  down,"  says 
Le  Blanc,  J.,  in  Pickering  vs.  Busk  (15  East,  88),  "  that  the 
mere  possession  of  personal  property  does  not  convey  a  title 
to  dispose  of  it,  and  which  is  equally  clear,  that  the  posses 
sion  of  a  factor  or  broker  does  not  authorize  him  to  pledge." 
The  principle  that  no  one  can  be  divested  of  his  property 
without  his  consent,  and  the  maxim  that  no  one  can  transfer 
a  better  title  than  he  has  himself,  control  all  questions  aris 
ing  as  to  property  of  which  a  transfer  is  attempted,  with 
the  exceptions  stated.  The  effect  of  possession  as  evidence 
of  ownership  is  subordinate  to  those  principles.  Covill  vs. 
Hill,  4  Denio,  327.  The  consent  of  the  owner  to  a  disposi 
tion  of  his  property  may  be  inferred  from  acts,  as  well  as 
given  in  direct  terms.  It  may  be  inferred  when  the  owner 
gives  such  evidence  of  ths  authority  of  disposal,  as  usually 
accompanies  such  authority,  according  to  the  custom  of  trade 


CONTRACTS  OF  AGENTS.  97 

and  the  general  understanding  of  business  men.  Thus,  the 
delivery  of  goods  to  a  merchant  engaged  in  the  sale  of  arti 
cles  of  a  similar  kind,  is  such  evidence  of  the  bestowal  of 
the  right  to  dispose  of  the  same  as  to  protect  the  purchaser 
from  the  possessor.  The  possession  under  such  circum 
stances  is  evidence,  not  that  the  possessor  is  owner,  but  that 
he  has  received  authority  from  the  owner  to  sell.  The  au 
thority  to  pledge  would  not  be  inferred  from  possession  in 
such  case,  for  to  pledge  is  a  special  transaction  outside  of  the 
usual  course  of  business,  and  consequently  outside  of  the 
protection  extended  to  ordinary  transactions  of  commerce. 
From  the  views  expressed  and  the  authorities  cited,  it  fol 
lows  that  the  limitation  asserted  in  Hutcliinson  vs.  Bours, 
and  Horr  vs.  Barker,  cannot  be  maintained.  Those  deci 
sions  are  anomalous  in  their  character  and  in  conflict  with 
the  law  upon  the  authority  of  factors,  as  it  is  recognized  by 
the  United  States  Courts  and  the  courts  of  every  state  of 
the  union  where  the  legislature  has  not  interfered  to  make 
a  change.  We  do  not  hesitate  to  overrule  them,  for  it  is  of 
the  highest  importance  to  those  engaged  in  commerce  in  this 
state  that  the  decision  of  this  court  on  commercial  questions 
should  be  in  conformity  with  the  adjudications  on  like  ques 
tions  of  the  courts  of  the  principal  commercial  communities 
of  the  world.  The  disposition  of  the  question  raised  as  to 
the  authority  of  Darling  to  pledge  the  goods  for  the  recovery 
for  value  of  which  the  present  action  is  brought,  renders  it 
necessary  to  consider  the  other  points  made  by  the  appel 
lant.  Upon  the  facts  found,  the  judgment  of  the  district 
court  must  be  reversed  and  that  court  directed  to  enter 
judgment  for  the  defendant.  19  Col.  72-77. 

"When  the  Agent  is  Personally  Liable. 

SEC.  52.  Upon  the  principle  that  the  contract  of  an 
agent  is  the  contract  of  the  principal ;  as  agent,  he  is  not 
liable  upon  any  agreement  into  which  he  enters,  merely  in 
his  representative  capacity.  Exparte  Hartop,  12  Ves.  jr.,  349, 
352.  But  wherever  an  agent  enters  personally  into  a  con 
tract,  or  pledges  his  own  credit  by  concealing  his  principal — 
even  if  the  party  dealing  with  him  had  the  means  of  find 
ing  out  the  principal  (Thompson  vs.  Davenport,  9  Barn.  & 
13 


98  JUSTICES'  TREATISE. 

Cress.  78) — or  otherwise,  this  gives  the  other  party  a  right  of 
action  against  him;  and  where  he  enters  in  his  own  name 
into  an  agreement,  in  writing,  he  cannot  relieve  himself  from 
his  liability,  even  by  showing  that  at  the  time  such  agree 
ment  was  made  and  signed,  the  other  contracting  party  knew 
that  he  was  only  an  agent  in  the  transaction.  Higgins  vs. 
Senior,  8  M.  £  W.  834;  13  Mo.  191. 

SEC.  53.  If  one  draws  a  bill  in  his  own  name,  without 
stating  that  he  acts  as  agent,  unless  when  acting  for  the 
government,  he  is  personally  liable,  although  he  directs  it 
to  be  paid  out  of  a  particular  fund.  Newhall  vs.  Dunlap, 
14  Maine,  180;  2  Miles,  254. 

SEC.  54.  Thus,  if  an  agent,  by  deed  under  his  own  hand 
and  seal,  covenant  "for  himself,  his  heirs,"  etc.,  for  the  act 
of  another,  he  is  personally  liable  upon  his  covenant,  al 
though  he  describes  himself  in  the  deed  as  covenanting 
"  for  and  on  behalf"  of  another  person.  5  East,  148. 

SEC.  55.  So,  where  the  defendant,  by  a  written  agree 
ment  expressed,  to  be  made  by  himself  ' '  on  behalf  of  A 
B,"  of  one  part,  and  the  plaintiff  of  the  other  part  stipu 
lated  that  he,  the  defendant,  would  execute  to  E,  the  plaint 
iff,  a  lease  of  certain  premises,"  which,  as  it  was  proved  to 
belong  to  AB:  Best,  C.  J.,  held,  that  the  defendant  was 
personally  liable,  observing  that  there  was  no  distinction 
between  deeds  and  parol  agreements  in  this  respect.  Nor 
ton  vs.  Herron,  1  E.  M.  229. 

SEC.  56.  But  a  'distinction  has  been  generally  regarded 
as  existing  between  deeds  and  simple  contracts,  in  reference 
to  the  forms  of  expression  and  of  execution  necessary  to 
bind  the  principal.  Greater  latitude  of  construction  and 
proof  has  been  admitted,  in  the  case  of  simple  contracts  than 
of  deeds.  In  contracts  not  under  seal,  it  will  be  sufficient, 
where  the  agent  intends  to  bind  his  principal  and  not  him 
self,  if  it  appear  in  such  contracts  that  he  acts  as  agent. 
Townsend  vs.  Hubbard,  4  Hill  (N.  Y.),  351;  8  Pick.  56;  23 
Wend.  435;  22  Wend.  324;  1  Greenl  231,  339. 

SEC.  57.  But  even  in  the  case  of  sealed  instruments  no 
precise  form  of  words  are  necessary  to  bind  the  principal. 
The  capacity  in  which  the  agent  acts  must  appear  from  the 
face  of  the  instrument;  where  this  is  the  case  no  more  is 


ASSIGNMENTS. 


99 


needed.  Magill  vs.  Hinsdale,  6  Conn.  464;  2  Conn.  680, 
682. 

SEC.  58.  So,  where  the  defendants,  who  were  directors 
of  a  joint-stock  newspaper  company,  gave  a  promissory  note 
in  the  following  form  :  "On  demand,  we  jointly  and  sever 
ally  promise  to  pay  to  Mr.  L  H  or  order,  the  sum  of  two 
hundred  dollars,  for  and  on  behalf  of  the  WeHsyan  news 
paper  association,"  and  this  note  was  signed  by  them  as 
directors,  it  was  held,  that  the  words,  ' '  we  severally  prom 
ise,"  were  equivalent  to  we  personally  promise  ;  and  that  the 
defendants  were,  therefore,  personally  liable  on  the  note. 
Healey  vs.  Storey,  3  Exch.  3.  The  same  doctrine  was  main 
tained  in  Bradlee  vs.  Boston  Glass  Co.,  16  Pick.  347.  But 
see,  in  Rice  vs.  Gore,  22  Pick.  158. 

SEC.  59.  A  demand  on  an  agent  for  an  account  of  the 
proceeds  of  goods  sold  by  him,  should  be  made  at  his  resi 
dence,  and  sufficient  opportunity  should  be  given  him  for 
payment.  Hall  vs.  Peck,  10  Vt.  474 ;  11  Ft.  477. 


CHAPTER   VII. 
ASSIGNMENTS. 


SECS. 

STATUTORY  PBO VISIONS 1-2 

WHO  MAY  ASSIGN  AND  TAKE  AS 
SIGNMENTS  3-6 

WHAT  MAY  BE  ASSIGNED 7-20 

WHAT  CANNOT  BE  ASSIGNED  ....  21-25 
WHAT  WILL  OPERATE  AS  AN  AS 
SIGNMENT  26-34 

INTERPRETATION  AND  EFFECT  OF  35-38 


SECS. 

EQUITABLE  ASSIGNMENTS 39-40 

EQUITARLE  OFFSETS,  RULES  OF  .  41-42 

NOTICE  OF  ASSIGNMENT 43-44 

ASSIGNMENT   FOR  THE  BENEFIT 

OF  CREDITORS 45-53 

ASSIGNMENT  OF  JUDGMENT 51-63 

ASSIGNMENT,  WHEN  VOID.  . 58-57 


Statutory  Provisions. 

SECTION  1.  All  bonds,  due-bills  and  other  instruments 
of  writing,  not  negotiable,  hereafter  made  by  any  person, 
body  politic  or  corporate,  whereby  such  person  promises  or 
agrees  to  pay  any  sum  or  sums  of  money,  or  articles  of  per 
sonal  property,  or  any  sum  of  money  in  personal  property, 
or  acknowledges  any  sum  of  money  or  articles  in  personal 
property,  to  be  due  to  any  other  person,  shall  be  taken  to 


100  JUSTICES'  TREATISE. 

be  due  and  payable,  and  the  sum  of  money  or  articles  in 
personal  property  therein  mentioned,  shall,  by  virtue  there 
of,  be  due  and  payable  to  the  person  to  whom  the  said  bond, 
bill,  or  other  instrument  in  writing,  is  made.  Gen.  Laivs, 
371. 

And  such  bond,  due-bill,  note,  or  other  instrument  in 
writing,  n<&  negotiable,  made  payable  to  any  person,  shall 
be  assignable  by  indorsement  thereon  under  the  hand  of  such 
person  and  his  assignee,  in  the  same  manner  as  bills  of 
exchange  are,  so  as  absolutely  to  transfer  and  vest  the  prop 
erty  thereof  in  each  and  every  assignee  successively.  Pub. 
Laws,  372. 

In  the  case  of  an  assignment  of  a  thing  in  action,  the  ac 
tion  by  the  assignee  shall  be  without  prejudice  to  any  set-off 
or  other  defense  existing  at  the  time  of  or  before  notice  of 
the  assignment;  but  this  section  shall  not  apply  to  a  nego 
tiable  promissory  note  or  bill  of  exchange,  transferred  in 
good  faith  and  upon  good  consideration  before  due.  Pr. 
Act,  Sec.  5. 

SEC.  2.  Original  Oivner — Trade-majrk  Assignable. — Any 
person  who  has  first  adopted  and  used  a  trade-mark  or 
name,  whether  within  or  beyond  the  limits  of  this  state,  shall 
be  considered  its  original  owner,  and  the  ownership  may  be 
transferred  in  the  same  manner  as  personal  property,  and 
shall  be  entitled  to.  the  same  protection  by  suits  at  law,  as 
other  personal  property.  Gen.  Laws,  7143. 

Who  may  Assign  and  take  Assignments . 

SEC.  3.  An  administrator  of  an  estate  in  New  York  has 
the  right  to  assign,  for  a  valuable  consideration,  a  judgment 
obtained  there  by  the  intestate  in  his  lifetime,  and  against 
a  person  who  has  since  removed  to  this  state.  12  Gal.  181. 

SEC.  4.  Where  personal  property  is  wrongfully  detained, 
the  owner  may  assign  his  title  thereto,  and  the  assignee  may 
maintain  an  action  therefor.  22  Gal.  139. 

SEC.  5.  A  right  of  action  for  the  wrongful  taking  and 
conversion  of  personal  property,  is  assignable,  and  under 
the  provisions  of  the  code  the  assignee  can  .recover  upon 
the  same  in  his  own  name.  22  Cat.  139. 

SEC.  6.     When  A,  by  agreement  between  him  and  B,  as- 


ASSIGNMENTS.  101 

sented  to  by  C,  becomes  liable  to  pay  to  the  latter  a  debt 
originally  due  to  him  from  B,  the  assignee  of  C  may  main 
tain  an  action  for  the  debt  in  his  own  name  against  A.  22 
Cal.  187. 

"What  may  be  Assigned. 

SEC.  7.  A  written  contract  not  to  run  boats  on  a  certain 
line  of  travel,  and  on  failure  to  comply  with  such  contract,  to 
pay  a  specified  sum,  is  an  instrument  in  writing  for  the 
payment  of  money,  and  is  made  assignable  by  our  laws.  6 
Cal.  261. 

SEC.  8.  A  defendant  is  estopped  from  denying  that  a 
contract  was  assignable,  if  he  was  notified  of  the,  assign 
ment,  and  received  from  the  plaintiff,  the  assignee,  the  full 
sum  of  money  which  the  assignor  contracted  to  pay.  6  Cal. 
261. 

SEC.  9.  The  language  of  section  five  of  the  practice  act, 
as  amended  by  the  act  of  eighteen  hundred  and  fifty-five, 
which  says:  "or  thing  in  action  not  arising  out  of  contract," 
means  a  thing  in  action  not  arising  out  of  express  contract. 
Even  this  construction  of  the  clause,  and  allowing  it  to  have 
effect  in  giving  the  right  of  assignment  in  cases  of  contract 
where  such  right  did  not  exist  before,  is  only  by  implica 
tion,  for  there  is  no  statute  which  directly  gives  the  right, 
or  directly  repeals  the  former  rule.  But  this  implication 
cannot  be  extended  so  as  to  embrace  choses  in  action  aris 
ing  out  of  torts.  6  Cal.  457. 

SEC.  10.  The  legal  property  in  a  chose  in  action,  remains 
in  the  assignor  notwithstanding  the  assignment.  1  Cal.  82, 
83. 

SEC.  11.  A  bill  of  lading  may,  like  all  other  contracts, 
be  assigned,  and  the  property  in  the  goods  therein  mention 
ed  transferred  to  the  assignee;  and  it  matters  not  whether 
such  assignment  be  made  in  full,  or  in  the  abbreviated  form 
of  a  simple  indorsement.  But  that  is  a  very  different  thing 
from  negotiability  (like  that  of  a  bill  of  exchange).  1  Cal. 
79. 

SEC.  12.  If  a  bill  of  lading  be  assigned  by  the  consignee 
bona  fide,  for  a  valuable  consideration,  and  without  notice 
of  any  adverse  interest,  the  property  in  the  goods  mentioned 
therein  becomes  vested  in  the  indorsee.  1  Cal.  81. 


102  JUSTICES'  TREATISE. 

SEC.  13.  Assignment  of  Debt  not  in  Existence. — An  assign 
ment  of  a  debt  not  in  existence,  is  not  valid  at  law;  such  an 
assignment  creates  an  equity  only.  35  Cal.  378. 

SEC.  14.  Damages  caused  by  Tt^espass. — A  claim  for  dam 
ages  caused  by  a  trespass  on  land,  is  assignable,  and  the 
assignee  may  maintain  an  action  to  recover  the  same.  32 
Cal.  590. 

SEC.  15.  A  contract,  where  the  owner  of  a  stallion  leases 
him  for  a  season  for  a  sum  of  money  agreed  on,  and  reserves 
the  right  to  have  the  horse  cover  nine  mares  during  the 
season,  is  assignable  ;  and  the  assignee,  who  is  also  the 
purchaser  of  the  horse  from  the  owner,  is  entitled  to  all  the 
benefits*  arising  out  of  the  contract.  27  Cal.  248. 

SEC.  16.  The  creditor  has  not  the  right  to  assign  the 
debt  in  parcels,  and  thus,  by  splitting  up  the  cause  of 
action,  subject  his  debtor  to  the  costs  and  expenses  of  more 
suits  than  the  parties  originally  contemplated.  But  when 
the  debtor  himself  does  not  object,  no  other  party  can 
object  for  him.  8  Cal.  536. 

SEC.  17.  When  the  Demand  for  the  Purchase  Money  is  Sold 
or  Assigned. — The  indebtedness  for  the  purchase  price  of 
real  estate  is  the  subject  for  an  execution  or  attachment, 
levy  and  sale,  or  of  private  transfer,  but  the  equitable 
interest  that  attaches  to  the  property  conveyed,  by  virtue  of 
the  indebtedness  in  the  hands  of  the  vendor,  is  extinguished 
by  a  transfer  of  the  indebtedness.  36  Cal.  313. 

SEC.  18.  An  agreement  to 'pay  a  certain  sum  of  money 
to  a  defendant,  if  he  would  withdraw  his  defense  to  a  suit, 
is  assignable  ;  and  such  assignment  gives  a  right  of  action 
in  the  name  of  the  assignee.  9  Cal.  325. 

SEC.  19.  An  order  drawn  upon  defendant,  for  an  amount 
due  from  the  defendant,  is  a  prima  facie  assignment  of  the 
debt  due.  Even  if  it  was  only  for  part  of  a  debt,  no  one 
could  make,  the  objection  but  the  defendants.  7  Cal.  260, 
12  Cal.  97;  14  Cal.  408.  And  the  drawees  Tiaving  notice 
of  such  assignment,  are  liable  to  the  payees  for  the  amount, 
without  an  express  promise  to  pay  it. 

SEC.  20.  A  contract  to  perform  work  on  a  street  in  San 
Francisco  may  be  assigned,  and  the  assignee,  if  he  fulfills 
the  conditions  of  the  same,  can  enforce  it;  and  if  such  con- 


ASSIGNMENTS.  103 

tract  has  been  assigned,  and  the  assignee  performs  the  con 
tract,  the  warrant  when  issued  for  the  work  may  be  deliver 
ed  to  the  original  contractor,  who  may  make  demand  for  its 
payment.  31  Col.  240. 

What  Cannot  be  Assigned. 

SEC.  21.  Causes  of  Action  not  Assignable. — Where  there 
is  no  final  settlement  of  the  partnership  accounts,  and  no 
balance  struck,  and  no  express  promise  on  the  part  of  the 
individual  members  to  pay  their  ascertained  portion  of  this 
amount,  no  action  can  be  maintained  therefor  in  assumpsit, 
nor  can  the  claim  be  assigned  so  that  the  assignee  may  sue. 
10  Col.  63. 

SEC.  22.  Causes  of  action  arising  out  of  personal  torts 
which  do  not  survive  to  the  personal  representatives  of  a 
party,  are  not  assignable.  Oct.  T.  1854;  3  Kernan,  322;  36 
Barb.  270. 

SEC.  23.  The  equitable  lien  which  a  vendor  of  real  estate, 
after  an  absolute  conveyance,  retains  upon  the  property  for 
the  unpaid  purchase  money,  is  not  assignable.  21  Gal.  172, 
178,  227. 

SEC.  24.  A  Mortgage. — Independent  of  the  debt  it  is 
given  to  secure,  a  mortgage  has  no  assignable  quality;  and 
one  who  receives  an  assignment  of  the  debt  for  which  it  was 
given,  takes  nothing  by  the  assignment.  30  Gal.  685. 

SEC.  25.  A  cause  of  action  for  a  malicious  prosecution, 
is  not  assignable.  22  Gal.  173. 

Mere  personal  torts,  as  assault  and  battery,  slander  and 
the  like,  die  with  the  person,  and  cannot  be  assigned.  22 
Gal.  173. 

What  will  Operate  as  an  Assignment 

SEC.  26.  Any  act  amounting  to  an  appropriation  of  a 
debt,  will  constitute  an  assignment  of  it — no  particular  form 
of  transfer  is  essential.  18  Gal.  126. 

SEC.  27.  Where  the  order  is  given  for  a  valuable  consid 
eration,  and  for  the  whole  amount  of  the  demand  against 
the  drawee,  though  worthless  as  a  bill,  it  operates  as  an  as 
signment  of  the  debt  or  fund  against  which  it  is  drawn.  12 
Gal.  92. 

SEC.  28.     An  assignment  of  an  account  by  indorsement 


104  JUSTICES'  TEEATISE. 

of  the  word  "assigned,"  signed  by  the  owner  of  the  account, 
is  sufficient.     6  Cal.  247. 

SEC.  29.  Such  an  assignment  being  sufficient,  it  was  not 
error  to  permit  the  plaintiff — the  assignee  of  the  account — 
to  amend  on  the  trial  the  assignment,  by  inserting  the  words 
"for  value  received,  I  hereby  assign  the  within  account," 
instead  of  the  word  "  assigned,"  the  additional  words  being 
mere  surplusage.  6  Cal.  247. 

SEC.  30.  The  mere  signing  an  assignment  without  deliv 
ery,  is  insufficient.  7  Cal.  388. 

SEC.  31.  An  instrument  under  seal  may  be  assigned  by 
writing,  without  seal.  34  Cal.  135. 

SEC.  32.  An  assignment  of  shares  of  stock,  in  a  corpo 
ration  formed  under  the  act  of  1853,  by  a  mere  delivery  of 
the  certificate  of  stock  without  a  transfer  on  the  books  of 
the  corporation,  is  invalid  as  against  a  subsequent  purchaser 
of  the  stock  at  sale  on  execution  against  the  assignor,  with 
out  notice  of  the  assignment.  20  Cal.  529. 

SEC.  33.  An  order  drawn  by  a  creditor  on  his  debtor  is 
prima  facie  evidence  of  an  assignment  of  the  debt,  pro  tanto, 
and  if  accepted  will  bind  all  parties.  7  Cal.  258. 

SEC.  34.  The  good  faith  of  the  assignment  being  ques 
tioned,  evidence  going  to  show  a  previous  pledge  of  the 
fund,  is  admissible.  7  Cal.  258. 

Interpretation  and  Effect  of. 

SEC.  35.  Suits  by  Assignee  of  a  Claim. — An  absolute  as 
signment  of  a  demand  enables  the  assignee  to  sue  for  and 
recover  the  whole  debt,  even  though  by  the  assignment  he 
acquired  only  a  portion  of  the  demand.  29  Cal.  150. 

SEC.  36.  Assignors  of  unliquidated  demands  are  not 
placed,  with  reference  to  incidental  matters  auxiliary  to  the 
trial  of  a  cause,  in  any  worse  position  than  the  parties  to 
the  record.  17  Cal.  570. 

SEC.  37.  Eights  are  said  to  be  merged  when  the  same 
person  who  is  bound  to  pay  is  also  entitled  to  receive.  This 
is  more  properly  called  a  confusion  of  rights  or  extinguish 
ment.  9  Cal.  SO. 

Where  A  received  an  assignment  of  stock  in  a  corpora 
tion,  and  the  stock  was  subsequently  attached  under  a  judg- 


ASSIGNMENTS.  105 

ment  against  the  vendor,  and  afterwards  the  stock  was  regu 
larly  transferred  to  A,  who  then  obtained  an  assignment  of 
the  judgment  under  which  the  stock  was  attached — the 
assignment  of  the  judgment  at  once  merged  in  the  higher 
right,  and  A,  as  regarded  third  parties,  became  the  absolute 
owner  of  the  stock.  9  Cal.  78. 

The  shares  being  subject  to  the  lien,  and  A  being  the 
owner  of  the  stock,  he  was  compelled  to  discharge  the  lien 
of  the  judgment  to  save  the  stock.  This  he  did  by  taking 
an  assignment  of  the  judgment.  By  taking  this  course, 
instead  of  paying  the  judgment,  he  retained  the  right  to 
issue  execution  against  the  vendor.  But  as  to  the  lien  upon 
the  property  attached,  the  assignment  had  the  effect  to  ex 
tinguish  it.  9  Cal.  81. 

SEC.  38.  Under  the  twelfth  section  of  the  act  concerning 
corporations,  passed  April  22d,  1850,  no  transfer  of  stock 
is  good  against  third  parties,  unless  the  transfer  be  made 
upon  the  books  of  the  company.  An  assignment,  by  mere 
delivery,  of  the  certificates  of  stock,  is  not  sufficient  to  de 
feat  the  rights  of  an  attaching  creditor.  The  legislature 
intended  to  protect  the  public  from  the  frauds  which  might 
be  perpetrated  by  a  sale  or  hypothecation  of  the  certificates 
passing  the  legal  or  equitable  title,  while  the  books  of  the 
company  induced  credit  to  the  vendor,  by  holding  him  out 
to  the  world  as  the  owner  of  such  stock.  5  Cal.  189. 

Equitable  Assignments. 

SEC.  39.  The  assignee  of  a  judgment  is  only  the  holder 
of  an  equity,  with  the  right  to  use  the  judgment  and  the 
name  of  the  plaintiff  to  enforce  it,  and  he  stands  in  the 
shoes  of  the  assignor  as  to  all  defenses  which  existed  against 
the  judgment  between  the  parties  to  it.  Wright  &  Co.  vs. 
Levy,  12  Cal.  257. 

A  certificate  of  deposit  of  eighteen  hundred  dollars,  pay 
able  to  the  order  of  Y,  was  indorsed,  sold  and  delivered, 
by  Y  to  L,  for  four  hundred  dollars.  Payment  ^ was  then 
at  once  demanded  of  the  maker,  and  notice  of  protest 
served  on  Y.  Subsequently,  L  transferred  the  certificate 
to  plaintiff :  Held,  that  plaintiff  can  recover  of  Y  only  the 
four  hundred  dollars  received  by  him,  the  certificate  being 
14 


106  JUSTICES'  TEEATISE. 

subject,  in  the  hands  of  plaintiff,  to  all  the  equities  between 
the  indorser  and  indorsee.    Coye  vs:  Palmer,  16  Cal.  158. 

Equity  upholds  assignments,  not  only  of  choses  in  action, 
but  of  contingent  interests  and  expectations,  and  of  things 
•  which  have  no  actual  existence,  but  vest  in  possibility : 
provided,  they  are  fairly  made  and  are  not  against  public 
policy  ;  and  a  contract  for  such  interest  will  take  effect  as 
an  assignment  when  the  subjects  to  which  they  refer  have 
cjeased  to  vest  in  possibility  and  have  ripened  into  reality. 
Pierce  vs.  Robinson,  13  Cal.  123. 

On  suit  upon  an  assigned  account,  the  defendant  may 
plead  any  defense  he  may  have  against  the  assignor  before 
notice  of  the  assignment — not  as  a  counter  claim,  as  that 
would  be  in  violation  of  section  forty-seven,  but  must  be 
set  up  as  an  equitable  defense,  on  the  ground  that  the 
assignee  takes  the  demand  subject  to  an  existing  equity. 
Duff Vs.  Hobbs,  Jan.  T.  1862. 

SEC.  40.  The  defendant  was  indebted  to  the  Empire 
Mining  Company,  who  were  indebted  to  the  plaintiff,  and  it 
was  agreed  by  all  the  parties  that  the  defendant  should  pay 
to  the  plaintiff  the  amount  of  this  indebtedness.  If  the 
rights  of  the  plaintiff  were  to  be  determined  by  the  rules  of 
the  common  law,  it  might  be  a  question  whether  the  action 
could  be  maintained  in  its  present  form,  but  there  is  no 
doubt  that  the  transaction  amounted  to  an  equitable  assign 
ment  of  the  debt,  and  under  our  practice  the  only  mode  in 
which  this  assignment  can  be  enforced  is  by  an  action  in  the 
name  of  the  assignee  for  the  recovery  of  the  debt.  "We  have 
but  one  form  of  action  for  the  enforcement  of  private  rights, 
and  with  certain  exceptions  the  statute  requires  that  'every 
action  shall  be  prosecuted  in  the  name  of  the  real  party  in 
interest.  Cases  of  assignment  are  not  included  in  these  ex 
ceptions,  and  in  the  form  of  the  remedy  no  distinction  exists 
between  legal  and  equitable  rights.  In  this  respect,  the  two 
classes  of  rights  are  placed  precisely  upon  the  same  footing, 
and  must  undergo  the  same  remedial  process  for  their  'en 
forcement. 

It  is  not  essential  to  the  validity  of  the  assignment  that 
any  particular  form  of  transfer  should  have  been  adopted. 
An  appropriation  of  the  fund  was  all  that  was  necessary, 


ASSIGNMENTS.  107 

and  any  act  amounting  to  such  an  appropriation  was  suffi 
cient  to  constitute  an  assignment  of  the  debt.  This  accords 
with  the  rule  laid  down  by  Judge  Story  in  his  work  on 
equity  jurisprudence,  and  we  have  no  statutory  provision 
derogating  from  the  effect  of  this  rule.  18  Cat.  127, 128. 

Equities  and  Offsets,  Rules  of. 

SEC.  41.  In  the  following  cases,  and  under  the  following 
circumstances,  a  defendant  may  set  off  demands  which  he 
has  against  the  plaintiff  : 

1st.  It  must  be  a  demand  arising  upon  judgment,  or  up 
on  contract,  express  or  implied,  whether  such  contract  be 
written  or  unwritten,  sealed  or  without  seal ;  and  if  it  be 
founded  upon  a  bond,  or  other  contract  having  a  penalty, 
the  sum  equitably  due,  by  virtue  of  its  condition  only,  shall 
be  set  off. 

2d.  It  must  be  due  to  him  in  his  own  right,  either  as 
being  the  original  creditor  or  payee,  or  as  being  the  as 
signee  or  owner  of  the  demand. 

3d.  It  must  be  a  demand  for  real  estate  sold,  or  for  per 
sonal  property  sold,  or  for  money  paid,  or  services  done;  or 
if  it  be  not  such  a  demand,  the  amount  must  be  liquidated, 
or  be  capable  of  being  ascertained  by  calculation. 

4th.  It  must  have  existed  at  the  time  of  the  commence 
ment  of  the  suit,  and  must  then  have  belonged  .to  the  de 
fendant. 

5th.  It  can  be  allowed  only  in  actions  founded  upon  de 
mands  which  could  themselves  be  the  subject  of  set-off, 
according  to  law. 

6th.  If  there  be  several  defendants,  the  demand  set  off 
must  be  due  to  all  of  them  jointly. 

7th.  It  must  be  a  demand  existing  against  the  plaintiff 
in  the  action,  unless  the  suit  be  brought  in  the  name  of  a 
plaintiff  who  has  no  real  interest  in  the  contract  upon  which 
the  suit  is  founded  ;  in  which  case,  no  set-off  of  a  demand 
against  the  plaintiff  shall  be  allowed,  unless  as  hereinafter 
specified. 

8th.  If  the  action  be  founded  upon  a  contract  (other 
than  a  negotiable  promissory  note  or  bill  of  exchange) 
which  has  been  assigned  by  the  plaintiff,  a  demand  existing 


108  JUSTICES'  TKEATISE. 

• 

against  such  plaintiff,  or  any  assignee  of  such  contract,  at 
the  time  of  the  assignment  thereof,  and  belonging  to  the 
defendant  in  good  faith  before  notice  of  such  assignment, 
may  be  set  off  to  the  amount  of  the  plaintiff's  debt,  if  the 
demand  be  such  as  might  have  been  set  off  against  such 
plaintiff  or  such  assignee,  while  the  contract  belonged  to 
him. 

9th.  If  the  action  be  upon  a  negotiable  promissory  note 
or  bill  of  exchange,  which  has  been  assigned  to  the  plaint 
iff,  after  it  became  due,  a  set-off  to  the  amount  of  the  plaint 
iff's  debt,  may  be  made  of  a  demand  existing  against  any 
person  or  persons  who  shall  have  assigned  or  transferred 
such  note  or  bill  after  it  became  due,  if  the  demand  be  such 
as  might  have  been  set  off  against  the  assignor,  while  the 
note  or  bill  belonged  to  him. 

10th.  If  the  plaintiff  be  a  trustee  for  any  other,  or  if  the 
suit  be  in  the  name  of  a  plaintiff,  who  has  no  real  interest 
in  the  contract  upon  which  the  suit  is  founded,  so  much  of 
a  demand  existing  against  those  whom  .plaintiff  represents, 
•or  for  whose  benefit  the  action  is  brought,  may  be  set  off  in 
an  action  brought  by  those  beneficially  interested. 

llth.  But  if  such  a  suit  be  brought  by  the  assignee  of 
an  insolvent,  imprisoned,  absent,  concealed  or  absconding 
debtor,  no  set-off  shall  be  allowed  of  any  debt.  Co  wen's 
Treatise. 

SEC.  42.  Set-off,  how  Defeated.—  Until  a  payment  becomes 
mature,  a  set-off  may  be  defeated  by  the  assignment  of  the 
claim  of  the  opposite  party,  though  the  latter  be  insolvent, 
and  his  demands  have  not  become  payable  when  assigned. 
Meyers  vs.  Davis,  22  N.  T.  E.  489. 

Notice  of  Assignment. 

SEC.  43.  A  sold  to  B  a  bill  of  goods  to  arrive  on  a  cer 
tain  vessel.  B  paid  part  of  the  purchase  money,  and  was 
to  pay  the  balance  as  soon  as  the  vessel  arrived.  B  assigned 
the  contract  to  C,  who  within  a  reasonable  time  after  the 
arrival  of  the  vessel,  tendered  the  balance  of  the  money  to 
A,  and  demanded  the  goods :  Held,  that  C  was  entitled  to 
the  goods,  and  no  notice  of  the  assignment  was  necessary 
to  charge  A;  and  it  was  no  defense,  that  before  A  had  notice 


ASSIGNMENTS.  109 

of  the  assignment,  attachments  in  favor  of  the  creditors  of 
B  had  been  served  upon  him,  and  that  he  sold  the  goods 
and  paid  the  proceeds  to  the  attaching  creditors  after  such 
notice,  without  the  assent  of  C.  If  the  assignee  had  allowed 
the  party  to  answer  the  attachment,  and  the  money  to  be 
made  by  the  process  of  the  court,  the  rule  would  be  differ 
ent.  But  the  .defendant  undertook  to  adjust  this  matter 
between  himself  and  the  attaching  creditors,  to  the  abso 
lute  exclusion  of  the  plaintiff's  rights.  Section  five  of  prac 
tice  act  does  not  extend  to  a  case  like  the  present.  5  Col. 
325,  326. 

SEC.  44.  Where  shares  of  stock  are  assigned  by  mere 
delivery  of  certificates,  without  a  transfer  on  the  books  of 
the  corporation,  notice  of  such  assignment  must  be  given, 
to  render  it  valid  against  subsequent  purchasers  at  sale  on 
execution  against  assignor.  20  Col.  529. 

Assignment  for  the  Benefit  of  Creditors. 

SEC.  45.  No  general  assignment  by  said  partnership,  in 
case  of  insolvency,  or  where  their  goods  and  estate  are  in 
sufficient  for  the  payment  of  their  debts,  shall  be  valid,  un 
less  it  provide  for  a  distribution  of  the  partnership  property 
among  all  the  creditors,  in  proportion  to  the  amount  of  their 
several  claims.  Gen.  Laws,  4820. 

SEC.  46.  A  party  being  about  to  fail,  can  assign  a  bill  of 
lading  of  goods  to  arrive,  not  yet  paid  for,  to  another,  in 
trust,  to  devote  the  proceeds  to  the  payment  of  the  vendor, 
and  such  assignment  is  good  against  attaching  creditors. 
The  transfer  of  the  bill  of  lading  constitutes  the  assignee 
the  agent  of  the  vendor,  and  this  act  being  for  the  benefit 
of  the  vendor,  his  assent  must  be  presumed.  The  transfer 
is,  therefore,  equivalent  to  a  re-delivery  of  the  goods  to  the 
vendor,  and  to  a  rescission  of  the  contract  of  purchase  be 
fore  the  goods  have  reached  the  hands  of  the  vendee.  It 
renders  a  stoppage  in  transitu  unnecessary,  and  indeed  takes 
away  that  right,  for  there  is  a  rescission  before  there  could 
be  a  stoppage.  The  fact  that  the  language  of  the  transfer 
implies  the  right  on  the  part  of  the  assignee  to  sell  the 
goods,  can  have  no  influence,  for  if  he  sold,  it  would  be  as 
agent  of  the  vendor.  6  Col.  514,  519. 


110  JUSTICES'  TKEATISE. 

SEC.  47.  Where  a  person  takes  an  assignment  of  per 
sonal  property,  under  an  agreement  with  the  assignor,  that 
out  of  the  proceeds  he  will  pay  a  debt  due  from  the  assignor 
to  a  third  person,  the  assignee  stands  to  the  creditor  in  the 
relation  of  a  trustee,  and  is  liable  to  a  direct  action  by  the 
creditor  for  the  debt.  20  Col.  126. 

The  proceeds  are  received  to  the  use  of  the  creditor,  and 
the  law  creates  the  privity  necessary  to  the  maintenance  of 
the  action.  20  Gal.  126. 

SEC.  48.  After  a  voluntary  assignment  for  the  benefit  of 
creditors,  in  order  to  enable  the  assignee  to  recover  goods 
belonging  to  the  assignor,  from  consignees  holding  the 
same  under  a  claim  for  advances  and  commissions,  the  de 
mand  must  be  made  in  the  name  and  by  the  authority  of 
the  assignee,  accompanied  by  notice  and  evidence  of  such 
authority.  A  demand  by  the  assignor,  and  a  refusal  by  the 
consignees,  will  not  enable  the  assignee  to  maintain  his 
suit  for  a  conversion.  4  Cal.  406. 

SEC.  49.  A  non-negotiable  chose  in  action  created  by  the 
immediate  parties  to  it,  for  the  purpose  of  defrauding  credi 
tors,  cannot  be  impeached  in  the  hands  of  an  innocent  as 
signee  by  the  creditors  of  the  debtors  making  such  chose  in 
action.  12  Cal  257. 

SEC.  50.  It  is  no  defense  to  an  action  on  an  account 
assigned  the  plaintiff,  that  the  account  was  not  assigned  to 
plaintiff  until  after  the  time  alleged  in  the  complaint,  or 
that  it  was  assigned  for  a  nominal  consideration  by  one  of 
two  partners,  without  consulting  his  copartner.  These  mat 
ters  do  not  affect  defendant's  liability.  17  Cal.  570. 

Assignment  of  Judgment. 

SEC.  51.  A  judgment  is  property,  which  may  be  pur 
chased  like  any  other  property.  The  purchaser  is  bound  to 
inquire  into  the  defenses  of  the  debtor.  He  has  the  means 
to  do  this;  but  he  could  not  be  held  to  inquire  into  latent 
equities  existing  in  the '  hands  of  third  persons.  The  law, 
when  it  made  this  sort  of  property  subject  to  sale,  gave  it 
the  protection  which  extends  to  all  other  property.  It  is 
only  by  force  of  the  statute  of  frauds  that  the  judgment  or 
sale  of  it  could  be  avoided  at  the  suit  of  the  creditor,  or  by 


ASSIGNMENTS.  Ill 

force  of  common-law  principles,  of  which  the  statute  is  an 
affirmance.  But  neither  this  statute  nor  these  principles 
affect  an  innocent  purchaser,  nor  an  innocent  purchaser  of 
equities,  any  more  than  of  legal  estates.  Between  the  par 
ties,  the  assignee  of  equities  stands  in  the  place  of  his 
assignor,  with  no  better  rights;  but  as  to  the  claims  of  third 
persons,  the  purchaser  of  an  equity  stands  unaffected  by 
frauds  of  which  he  has  no  knowledge,  express  or  construct 
ive.  12  CaL  262,  263. 

SEC.  52.  The  purchaser  of  a  judgment,  although  he  buys 
in  good  faith,  and  for  a  valuable  consideration,  takes  the 
same  subject  to  any  right  of  set-off  existing  between  the 
parties  at  the  time  of  his  purchase.  23  CaL  596. 

An  assignee  of  a  judgment  is  deemed  to  have  notice  of 
all  matters  disclosed  by  the  record  and  proceedings  in  the 
action  in  which  the  judgment  was  rendered;  and  where  that 
judgment  or  the  proceedings  therein  disclose  an  equitable 
right  of  set-off  existing  in  favor  of  the  defendants  against 
the  plaintiff,  the  assignee  cannot  claim  to  be  a  bona  fide 
purchaser.  23  CaL  596. 

SEC.  53.  In  the  purchase  of  a  judgment,  the  rule  of  ca 
veat  emptor  applies,  so  far  as  third  parties  are  concerned,  in 
the  same  manner  as  in  the  purchase  of  any  other  personal 
property.  If  the  assignor  has  no  title,  the  purchaser  will 
take  care  whether  he  have  notice  of  a  former  sale  or  not. 
25  CaL  539. 

It  is  not  necessary  that  the  assignment  of  a  judgment 
should  be  under  seal.  25  Col.  539. 

SEC.  54.  The  purchaser  of  a  judgment  entered  by  default 
takes  it,  subject  to  the  right  of  the  defendant  upon  showing 
sufficient  grounds  to  have  the  default  and  judgment  set 
aside,  and  to  be  let  in  to  defend  the  action;  and  in  this  re 
spect  stands  in  no  better  position  than  his  assignor.  23 
CaL  255. 

SEC.  55.  The  assignment  of  a  judgment  which  is  void 
because  the  amount  for  which  it  was  rendered  was  beyond 
the  jurisdiction  of  the  court,  carries  with  it  the  debt  on 
which  it  was  obtained.  25  CaL  190. 

SEC.  56.  He  who  purchases  a  void  judgment,  and  con 
tracts  with  the  assignor  to  pay  him  therefor,  and  afterwards 


112  JUSTICES'  TREATISE. 

uses  the  judgment  in  payment  for  property  of  the  defendant, 
sold  under  executions  issued  on  this  and  other  judgments, 
cannot,  when  sued  on  his  contract  for  the  purchase  money, 
avoid  his  liability  on  the  ground  that  the  judgment  was  void 
and  of  no  value  to  him.  25  Cal.  190. 

SEC.  57.  Where  A  appeals  from  a  judgment  against  him, 
and  B  becomes  his  surety  on  the  appeal  bond,  and  A,  to 
secure  B  for  his  liability  on  the  appeal  bond,  assigns  to  B  a 
liquidated  demand  held  by  A  against  third  parties,  the  lia 
bility  of  B  in  the  appeal  bond  is  a  sufficient  consideration 
to  support  the  assignment  made  to  him  by  A.  23  Cal.  596. 

Assignments,   when  Void. 

SEC.  58.  An  assignment  for  the  benefit  of  certain  parties, 
who  have  undertaken  to  guarantee  the  payment  of  such 
creditors  of  the  assignor,  as  consent  to  an  extension  of  time 
or  substitution  of  security,  is  void.  GroscJien  vs.  Page,  6 
Cal.  138. 

SEC.  59.  A  partial  or  special  assignment  is  equally  void 
as  a  general  assignment,  and  being  void  because  it  delays 
and  hinders  creditors,  as  well  as  because  it  is  against  the 
policy  of  the  statute,  cannot  be  sued  by  the  intervention 
of  third  parties  who  voluntarily  assume  to  do  that  for  the 
indulgent  creditors  which  the  debtor  himself  could  not  do. 
6  Cal.  138. 

SEC.  60.  Fraudulent  Assignor  cannot  Sue. — One  who 
makes  an  assignment  of  property  for  the  sole  purpose  of 
hindering,  delaying  and  defrauding,  his  creditors,  cannot 
maintain  an  action  against  the  assignees  to  compel  a  re-as 
signment  of  it,  or  judgment  for  its  value  if  a  re-assignment 
cannot  be  had;  nor  can  a  purchaser  from  the  assignor,  who 
buys  with  full  knowledge  of  such  fraudulent  assignment, 
maintain  such  action.  25  Cal.  653. 

SEC.  61.  "Where  an  account  is  verbally  assigned  to  a  cred 
itor,  with  the  understanding  that  in  case  he  collects  it,  he 
will  credit  his  claim  with  a  portion  thereof  and  return  the 
balance  to  the  assignor,  but  if  nothing  is  received  no  sum 
is  to  be  credited,  the  assignment  is  void,  and  the  assignee 
cannot  sue  thereon  in  his  own  name.  7  Cal.  388. 

SEC.  62.     That  the  trustees  employ  the  partner  assigning 


BAILMENT,    CONTRACTS   OF.  113 

to  aid  them  in  winding  up  the  concern  and  pay  him,  and 
allow  his  wife  some  furniture,  etc.,  is  not  proof  of  fraud  in 
the  assignment,  there  being  no  evidence  that  these  benefits 
were  promised  at  the  time  of  the  assignment.  13  Col.  242. 
SEC.  63.  Assignment  of  a  Sheriff's  Certificate  of  Sale  as 
Security. — One  who  receives  an  assignment  of  a  sheriff's 
certificate  of  sale  of  land  as  security  against  the  liability  for 
debts  of  the  judgment  debtor,  with  an  agreement  that  he 
will  cancel  the  same  when  the  debts  are  paid,  and  his  lia 
bility  is  discharged,  ceases  to  have  any  interest  in  the  cer 
tificate  when  the  debts  are  paid;  and  if  he  afterwards  obtains 
a  sheriff's  deed,  neither  he  nor  his  assignee  with  notice 
acquire  any  title  to  the  land.  30  Cal.  135. 


CHAPTER   VIII. 
BAILMENT,  CONTEACTS  OF. 

SECTION  1.  A  bailment  is  a  delivery  of  a  thing  in  trust  to 
another,  for  some  special  object  or  purpose,  and  upon  a 
contract,  express  or  implied,  to  conform  to  the  object  or 
purpose  of  the  trust.  Story  on  Bailments,  2.  The  one  who 
delivers  the  thing  is  the  bailor ;  the  one  who  receives  it  the 
bailee. 

SEC.  2.     There  are  five  classes  of  bailments  : 

1st.  Deposit,  where  goods  are  delivered  to  another  to  be 
returned  on  demand,  and  without  recompense.  In  such  a 
case,  no  action  will  lie  until  after  the  demand  of  the  prop 
erty,  by  the  bailor,  or  by  some  person  for  him,  having  author 
ity  to  make  the  demand,  and  a  refusal  by  the  bailee  to  deliver 
it.  9  Johns.  361. 

2d.  Mandate,  as  where  the  bailee  receives  the  goods  with 
a  promise  that  he  will  carry  them  to  some  place,  or  that 
he  will  perform  some  act  to  them  without  reward,  as  where 
one  generously  takes  your  trunk  to  carry  to  town  and  leaves 
it  at  some  place  there  for  you;  or  kindly  receives  of  you  a 
horse  to  break  to  the  saddle  or  harness. 
15 


114  JUSTICES'  TREATISE. 

3d.  A  loan  for  use,  as  when  one  borrows  my  gun  or  my 
horse,  to  use  without  paying  for  the  use. 

4th.  A  pledge,  is  where  goods  are  delivered  to  a  creditor, 
to  be  retained  by  him  until  his  debtor  pays~him.  Actual 
delivery  is  necessary  to  make  a  pledge  valid.  Story  on 
Bailm.  197. 

5th.  Letting  to  hire,  is  a  bailment  where  compensation 
is  to  be  given  for  the  use  of  the  thing  bailed,  or  for  labor 
or  services  about  it.  This  species  of  bailment  is  of  three 
kinds:  1.  The  hiring  a  thing  for  use,  by  which  the  bailer 
for  a  compensation  acquires  its  temporary  use,  as  where  I 
hire  my  friend's  horse  to  ride  for  a  day.  2.  The  delivery 
of  a  thing  to  a  bailee  to  have  something  done  with  it,  as 
where  I  deliver  clothes  to  a  washerman  to  have  them 
cleansed,  or  my  horse  to  a  horse-shoer  to  have  him  shod. 
3.  As  where  I  deliver  goods  to  be  transported  by  the  bailee 
for  a  reward.  7  Cow.  499. 

SEC.  3.  In  determining  the  responsibility  of  bailees  for 
the  violation  of  the  contract  of  bailment,  a  distinction  is 
made  between:  1st.  Slight  neglect.  2d.  Ordinary  neglect; 
and  3d.  Gross  neglect.  Slight  neglect,  is  the  want  of  such 
diligence  as  very  circumspect  and  cautious  persons  use  in 
the  care  of  their  own  goods,  and  which  is  called  extraordi 
nary  care.  Ordinary  neglect,  is  the  want  of  ordinary  dili 
gence,  or  the  omission  of  the  care  which  every  man  of  com 
mon  prudence  takes  of  his  own  concerns,  called  ordinary 
care.  Gross  neglect,  is  the  want  of  even  slight  diligence,  or 
of  such  care  as  every  man  of  common  sense,  however  inat 
tentive,  takes  of  his  own  property,  and  is  esteemed  in  law — 
violation  of  good  faith.  Cow.  Treatise,  63. 

SEC.  4.  A  bailee  who  derives  no  benefit  from  the  bail 
ment,  as  in  case  of  a  deposit  or  mandate,  is  responsible 
only  for  gross  neglect.  One  who  alone  receives  benefit 
from  the  bailment,  as  in  loans  for  use  by  the  bailee,  with 
out  compensation,  is  responsible  for  slight  neglect.  Where 
the  bailment  is  beneficial  to  both  parties,  as  in  case  of 
pledging  or  letting  to  hire,  the  bailee  is  answerable  for  ordi 
nary  neglect,  unless  where  there  is  a  special  agreement  in 
relation  to  it,  which  is  permitted  with  some  exceptions.  All 
bailees  are  answerable  for  actual  frauds,  even  though  the 
contrary  be  stipulated.  Cow.  1h*eatise,  63. 


BAILMENT,   CONTRACTS  OF.  115 

SEC.  5.  Bailees  are  not  responsible  for  a  loss  occasioned 
by  inevitable  accident,  or  irresistible  force,  except  it  be  pro 
vided  for  by  special  agreement.  Cow.  Treatise,  63. 

SEC.  6.  The  following  rules  may  be  deduced  from  the 
principles  laid  down  in  the  three  last  sections : 

1st.  A  depository  is. responsible  for  gross  neglect. 

2d.  If  the  character  for  care-taking  of  the  bailee  is  known 
to  the  bailor,  and  he  takes  as  good  care  of  the  bailor's  goods 
as  he  does  of  his  own,  the  bailee  is  not  responsible. 

3d.  A  mandatory  to  carry,  is  only  responsible  for  gross 
neglect  or  a  breach  of  good  faith.  , 

4th.  A  mandatory  to  perform  a  work  is  bound  to  use  a 
degree  of  diligence,  adequate  to  the  performance  of  it.  3 
Johns.  170;  4  Johns.  84. 

5th.  One  cannot  be  compelled  to  perform  a  promise  to 
receive  a  deposit  or  mandate,  nor  to  pay  damages  for  refus 
ing  to  keep  such  a  promise,  because  there  is  no  considera 
tion  for  the  promise.  But  if  the  bailee  has  received  the 
deposit  or  mandate,  and  neglects  to  perform  the  contract 
of  bailment,  he  is  liable.  5  Term,  143. 

6th.  A  borrower  for  use,  is  liable  for  slight  neglect. 

7th.  A.  pledgee  or  pawnee,  is  answerable  for  ordinary  neg 
lect. 

8th.  The  hirer  of  a  thing,  is  responsible  for  ordinary  neg 
lect. 

9th.  A  workman  for  hire  must  answer  for  ordinary  neg 
lect  of  the  goods  bailed,  and  apply  as  much  skill  as  the 
undertaking  demands. 

10th.  One  who  hires  his  care  and  attention,  is  responsi 
ble  for  ordinary  neglect. 

llth.  A  carrier  by  land  or  water,  is  answerable  for  ordi 
nary  neglect. 

SEC.  7.  The  following  are  exceptions  to  the  rule  laid 
down  in  the  foregoing  section : 

1st.  One  who  officially  engages  or  voluntarily  undertakes 
to  do  a  thing,  is  responsible  for  ordinary  neglect. 

2d.  If  one  is  over  persuaded  to  execute  a  mandate,  and 
undertakes  it  against  his  will,  an  ordinary  exertion  of  his 
ability  only  can  be  required  of  him. 


116  JUSTICES'  TREATISE. 

3d.  All  bailees  are  responsible  for  losses  or  injuries  to 
the  thing  bailed,  after  a  demand  is  made  for  its  return. 

4th.  A  borrower  and  a  hirer,  are  responsible  at  all  events 
if  they  keep  the  thing  longer  than  the  time  stipulated  for, 
or  use  it  otherwise  than  was  agreed  on  at  the  time  of  receiv 
ing  it.  Cow.  Treatise,  64. 

5th.  A  pawnee,  and  depositary  are  responsible  if  they  use 
the  thing  pawned  or  deposited,  unless  it  be  something  that 
is  a  charge  upon  them,  as  a  horse  or  a  cow;  in  such  a  case 
he  may  milk  the  cow  or  use  the  horse,  but  if  he  receives  any 
profit  from  their  usje  over  and  above  the  costs  of  keeping, 
it  must  be  applied  to  the  pawnee's  debt.  /Story  on  Bailm. 
67-8. 

6th.  An  innkeeper  is  chargeable  for  the  goods  of  his  guests, 
if  delivered  to  him  or  his  servant,  or  if  they  be  deposited 
where  it  is  usual  to  deposit  such  things,  and  which  is  des 
ignated  by  the  innkeeper  or  his  servant.  21  Wend.  282. 

7th.  A  common  carrier — by  which  term  is  meant,  one  who 
undertakes  for  hire,  to  transport  from  place  to  place  the 
goods  of  such  persons  as  choose  to  employ  him ;  is  responsi 
ble  for  loss  or  damage  to  the  goods  intrusted  to  him,  unless 
occasioned  by  the  act  of  God  or  the  public  enemies.  The 
rule  is  the  same  whether  the  carriage  is  by  land  or  water. 
Cow.  Treatise,  65. 

8th.  A  carrier  of  passengers  and  their  baggage,  is  respon 
sible  for  the  baggage,  if  lost,  although  no  distinct  or  sepa 
rate  price  be  agreed  on  for  its  transportation.  The  price  of 
its  transportation  being,  in  contemplation  of  law,  included 
in  the  fare.  But  the  baggage  must  be  necessary  articles, 
and  such  as  are  convenient  for  travelers  to  carry.  If  it  be 
money,  it  must  be  such  an  amount  as  travelers  usually  carry 
to  defray  expenses.  The  liability  continues  until  the  bag 
gage  is  delivered  to  the  owner.  .  A  delivery  upon  a  forged 
order  will  not  excuse  the  carrier.  25  Wend.  459;  26  Wend. 
591. 

The  following  sections  contain  the  decisions  of  the  su 
preme  court  of  California  on  the  subject  of  bailments: 

SEC.  8.  Bailment  is  the  delivery  of  a  thing  in  trust  for 
some  special  object  or  purpose,  upon  a  contract,  express  or 
implied,  to  conform  to  the  object  or  purpose  of  the  trust.  8 
Col.  43. 


v  BAILMENT,  CONTEACTS  OF.  117 

The  objects  of  bailments  may  be  as  various  as  the  trans 
actions  of  men ;  they  are  made  for  the  purpose  of  sale,  hire, 
safe-keeping,  etc.  In  a  large  majority  of  transactions,  they 
are  made  for  the  purpose  of  a  disposition  or  conversion  of 
the  property.  As,  for  example,  bailments  by  commission 
merchants  or  factors,  in  which  a  conversion  is  the  very  ob 
ject  of  the  trust.  If  in  such  cases,  after  a  sale  or  conversion 
of  the  property,  the  agent  or  factor  should  lose  or  misapply 
the  proceeds,  an  indictment  would  not  lie  against  him,  under 
the  statute  concerning  bailees,  although  he  might  probably 
be  indicted  for  embezzlement,  if  the  legislature  thought 
proper  to  make  that  a  penal  offense.  8  Cal.  43. 

All  conversions  of  money  or  property,  by  a  bailee,  are 
not  ipso  facto  unlawful  or  felonious  under  our  statute.  The 
legislature  intended  to  use  the  word  in  a  limited  sense,  as 
designating  bailees  to  keep,  to  transfer,  or  to  deliver.  The 
cases  generally  arise  upon  contracts,  and  the  circumstan 
ces  constituting  the  offense.  8  Cal.  43,  44. 

SEC.  9.  Where  a  redemptioner  under  the  statute,  pays 
to  the  sheriff  an  excess  of  money,  under  protest  as  to  the 
excess,  the  payment  is  not  compulsory.  14  Cal.  232. 

In  such  case  the  sheriff  is  the  bailee  of  the  redemptioner 
as  to  the  excess,  who  may  recover  it  back  on  demand,  the 
money  not  having  been  paid  over  to  the  redemptionee.  14 
Cal.  232. 

SEQ.  10.  A  pledge  is  a  bailment  which  is  reciprocally 
beneficial  to  both  parties.  The  law  therefore  requires  of 
the  pledgee  the  exercise  of  ordinary  diligence  in  the  care 
and  custody  of  the  goods  pledged,  and  he  is  responsible 
for  ordinary  negligence.  What  will  amount  to  ordinary 
negligence  must  depend  on  the  circumstances  of  the  trans 
action  and  the  character  of  the  pledge.  In  general,  it  may 
be  defined  to  be  the  neglect  to  exercise  that  degree  of  care 
which  an  ordinarily  prudent  man  usually  bestows  upon  his 
own  property  of  a  like  description.  6  Cal.  647.  When 
bailors  agree  that  goods  shall  be  stored  in  a  certain  ware 
house  at  their  risk  and  expense,  their  removal  by  an  agent 
of  the  bailees,  though  without  their  knowledge,  charges 
them  for  the  safe  keeping  of  the  goods  after  their  removal, 


118  JUSTICES'  TREATISE. 

and  they  are  responsible  for  any  damage  to  the  goods 
caused  by  their  removal  to  an  insecure  or  improper  place  of 
storage.  The  keeper  of  the  warehouse,  as  the  agent  of  the 
bailees,  is  responsible  to  them  for  any  damage  resulting 
from  his  unauthorized  acts.  6  Col.  648. 

SEC.  11.  A  party,  by  pledging  negotiable  securities, 
transferable  by  delivery,  loses  all  right  to  the  securities, 
when  transferred  by  the  pledgee  in  good  faith  to  a  third 
party.  If  the  pledge  is  of  a  certificate  of  stock,  which  may 
pass  by  delivery,  a  bona  fide  purchaser,  or  subsequent 
pledgee,  may  hold  the  stock  against  the  real  owner;  other 
wise,  no  person  receiving  such  security  would  be  safe.  In 
the  first  place,  the  person  receiving  would  be  obliged  to 
ascertain  (what  in  most  instances  it  would  be  impossible  to 
ascertain)  whether  the  security  belonged  to  the  person  from 
whom  he  received  it,  or  was  only  deposited  as  security  with 
him  by  some  other  person.  Although  warrants  drawn  by 
officers  of  a  government  upon  its  disbursing  officers,  might 
not  be  strictly  called  evidences  of  indebtedness,  yet  the 
owner  having  once  pledged  them  with  another,  reposing 
confidence  in  his  pledge,  any  person  subsequently  acquiring 
them  in  good  faith  from  such  pledge,  must  hold  them 
against  the  original  owner.  The  pledge  in  such  a  case 
should  be  treated  in  the  transaction  as  the  agent  of  the 
owner,  and  the  owner  should  be  bound  by  his  acts  in  the 
premises.  5  Cat.  261,  262. 

SEC.  12-  Collateral  security  may  be  held  in  as  many 
various  ways,  and  subject  to  as  many  different  conditions, 
as  there  is  variety  in  the  objects  and  character  of  contracts; 
thus,  personal  property,  merchandise  or  stock,  may  be  held 
as  collateral  security,  in  the  nature  of  a  mortgage,  in  which 
the  parties  could  agree  that,  in  case  of  non-payment,  the 
right  of  property  should  become  absolute,  and  that  without 
notice  or  foreclosure;  or,  it  may  be  held  as  a  pledge,  the 
right  of  restoration  upon  the  payment  of  the  debt  being 
reserved  to  the  debtor;  and  it  is  competent  for  the  parties 
to  contract,  that  the  goods  or  stock  thus  pledged  as  collat 
eral  may  be  sold  with  or  without  notice,  and  upon  non 
payment,  without  demand  of  payment.  So,  also,  goods  or 
stock,  or  other  securities,  may  be  held  by  the  creditor 


BAILMENT,    CONTKACTS  OF.  119 

under  an  absolute  transfer,  in  trust  for  the  debtor,  with  the 
power  in  the  creditor  to  sell  and  reimburse  himself  for 
advances  made,  or  to  provide  himself  from  time  to  time 
with  funds  to  meet  the  additional  demands  of  the  debtor, 
and  to  pay  his  drafts;  or,  in  other  words,  it  is  competent  for 
parties  to  foresee  these  contracts  to  suit  themselves,  and 
courts  of  law  will  be  governed  by  the  plain  import  of  the 
language  of  the  contract  in  each  particular  case.  3  Gal. 
159,  160. 

SEC.  13.  In  case  of  a  naked  pledge  as  collateral  security, 
the  authority  to  sell,  when  not  expressly  given,  cannot  be 
exercised  without  demand  of  payment  and  notice.  3  Gal. 
161. 

SEC.  14.  A  pledgee  of  chattels  has  a  right  at  common 
law,  if  the  pledge  is  not  redeemed  within  the  stipulated 
time,  to  sell  the  property  pledged,  at  auction,  by  giving 
public  notice  of  the  time  and  place  of  sale ;  and  if  the  sale 
does  not  satisfy  the  debt,  he  may  recover  the  deficiency 
from  the  pledger  by  an  action  at  law.  26  Gal.  577. 

SEC.  15.  The  common-law  right  of  the  pledgee  to  sell 
the  pledge  upon  the  default  of  the  pledgor,  and  thereafter 
bring  his  action  for  any  balance  remaining  unsatisfied,  is 
wholly  unaffected  by  chapter  one  of  title  eight  of  the  prac 
tice  act.  26  Gal.  578. 

SEC.  16.  Where  personal  things  are  pledged  for  the  pay 
ment  of  a  debt,  the  general  property  and  the  legal  title 
always  remain  in  the  pledger;  the  special  property  and  the 
possession,  or  right  of  possession,  being  in  the  pledgee,  the 
pledger  having  the  right  to  restoration  of  the  property  on 
payment  of  the  debt.  3  Gal.  162. 

Where  the  plaintiff  drew  several  drafts  upon  the  defend 
ant,  who  held  a  deposit  of  securities  for  the  payment  of  a 
debt,  directing  him  to  pay  them  "from  the  proceeds  of  the 
securities  in  his  hands;"  this  was  held  to  give  an  authority 
to  the  plaintiff  to  sell  the  securities  deposited  to  meet  the 
drafts;  and  a  sale  made  under  such  authority  is  good,  without 
notice  to  the  plaintiff  of  the  time  and  place  of  sale,  or  pre 
vious  demand  of  payment.  3  Gal.  158. 

SEC.  17.  A  party  placing  money  in  the  hands  of  another 
for  the  purpose  of  making  a  bet  on  an  election,  in  the  name 


120  JUSTICES'  TEEATISE. 

of  the  bailee,  but  for  the  benefit  of  the  bailor,  may  retract 
the  illegal  act  of  making  the  bet,  and  does  not  forfeit  the 
money  by  reason  of  the  illegality  of  the  purpose  for  which 
it  was  deposited.  11  Gal.  343. 

The  bailor  does  not  part  with  the  ownership  by  allowing 
it  to  be  used  for  his  benefit,  though  in  the  name  of  another. 
The  money  in  the  hands  of  the  agent  remains,  as  between 
him  and  the  principal,  the  money  of  the  principal.  11  Col. 
343. 

Upon  the  retraction  of  the  wager,  the  right  to  the  posses 
sion  of  the  money  is  in  the  agent  or  bailee,  and  he  may 
maintain  an  action  for  it  where  the  bailor  interposes  no  ob 
jection.  11  CaL  343. 

Nor  can  an  attaching  creditor  of  the  bailee,  levying  on 
the  money  in  the  hands  of  a  stakeholder  with  whom  it  has 
been  deposited  by  the  bailee,  claim  that  the  bailor  is  es 
topped  by  having  allowed  the  bailee  to  use  the  money  in  his 
own  name,  when  the  specific  money  was  in  question  and 
could  be  distinguished.  The  creditor  had  not  been  misled 
by  acts  or  declarations  of  the  bailor,  nor  had  he  given  credit 
to  the  bailor  by  reason  thereof.  11  Col.  343. 

The  stakeholder  being  informed  of  the  rights  of  the  bailor, 
was  bound  to  protect  those  rights  by  resisting  in  some  way, 
the  pleadings  against  him  as  a  garnishee,  the  bailor  being 
no  party  thereto ;  nor  will  he  be  protected  by  a  judgment 
improperly  entered  against  him,  ordering  him  to  pay  the 
money  to  the  attaching  creditor.  11  Col.  343. 

SEC.  18.  ,  The  general  rule  is,  that  in  an  action  by  the 
bailor,  the  bailee  will  not  be  allowed  to  set  up  title  in  a 
third  party.  9  Cal.  574.  There  is,  however,  an  exception 
to  this  rule  in  cases  where  the  bailor's  possession  was  ob 
tained  by  fraud.  9  Cal.  574.  Thus,  where  the  defendant 
was  employed  to  sell  certain  goods  then  in  plaintiff's  pos 
session,  and  the  goods  were  claimed  by  the  Assignees  of  a 
bankrupt,  and  notice  of  the  claim  given  to  defendant  before 
the  sale,  the  plaintiffs  having  obtained  possession  by  means 
of  a  fraudulent  collusion  with  the  insolvent  was  admitted 
as  a  defense.  9  CaL  574. 

If  the  bailee  received  the  goods  from  the  bailor,  inno 
cently,  under  the  impression  made  by  the  bailor  that  he  is 


BAILMENT,    CONTKACTS  OF.  121 

the  owner  thereof,  or  has  the  right  to  dispose  of  them  in 
the  manner  he  is  doing,  and  therefore  promises  to  return 
the  goods  to  the  bailor,  such  a  promise  ought  not  to  be 
regarded  as  binding,  because  obtained  through  a  false  im 
pression  made  willfully  by  the  bailor;  and  in  every  such  case 
the  goods  should  be  delivered  to  the  true  owner,  especially 
if  he  demanded  the  same,  instead  of  the  wrongful  bailor. 
9  Cal.  574,  575. 

It  may  be  correct  enough  to  hold,  where  the  real  owner  of 
the  property  does  not  appear  to  assert  his  right  to  it,  that 
the  carrier  or  bailee  should  not  be  permitted,  of  his  own 
mere  motion,  to  set  up  a  defense  against  the  bailor,  such 
right  for  him.  But  it  would  be  repugnant  to  every  prin 
ciple  of  honesty  to  say  that,  after  the  right  owner  has  de 
manded  the  goods  of  the  bailor,  the  latter  shall  not  be  per 
mitted,  in  an  action  brought  against  him  by  the  bailor  for 
the  goods  to  defend  against  his  claim,  by  showing  clearly 
and  conclusively  that  the  plaintiff  acquired  possession  of 
the  goods,  either  fraudulently,  tortiously,  or  feloniously, 
without  having  obtained  any  right  thereto.  A  different 
rule  would  be  productive  of  great  hardship  to  the  bailee  in 
such  cases ;  for  when  the  adverse  title  is  made  known  to  the 
carrier,  if  he  is  forbidden  to  deliver  the  goods  to  any  other 
person,  he  acts  at  his  peril,  and  if  the  adverse  title  is  well 
founded,  and  he  resists  it,  he  is  liable  to  an  action  for  the 
recovery  of  the  goods  by  the  person  setting  up  such  adverse 
title.  9  Cal.  575. 

Thus,  where  the  defendant,  a  master  of  a  vessel,  received 
certain  goods  of  plaintiff,  to  be  delivered  at  a  certain  place, 
which  he  failed  to  do,  and  in  the  action  brought  thereupon 
he  offered  to  prove  that  the  goods  belonged  to  a  third 
party,  who  had  forbidden  such  delivery,  and  that  plaintiff 
had  obtained  possession  of  the  goods  by  fraud,  it  was  held 
that  he  was  entitled  to  prove  such  facts.  9  Cal.  573. 


16 


122  JUSTICES'  TREATISE. 

CHAPTER     IX. 
COMMON  CABBIEBS. 


DEFINITION 1-4 

OBLIGATIONS  or. . .  4-34 


SECS.  SECS. 

WHO  ABE  . .  35-47 


LIABILITY  OF  ...  48-73 


Definition. 

SECTION  1.  A  common  earner  of  goods  is  one  who  under 
takes,  for  hire  or  reward,  to  transport  the  goods  of  such  as 
choose  to  employ  him,  from  place  to  place.  Steamboat 
companies,  railway  companies,  masters  of  vessels,  barge 
men,  ferry-men  Smith  vs.  Stewart,  (3  Pa.  St.  B.  342),  pro 
prietors  of  stage-coaches  and  stage-wagons,  which  ply  from 
place  to  place  (Beekman  vs.  S 'house,  5  Bawle,  179),  truck 
men,  cartmen,  porters  who  carry  parcels  in  the  same  town 
from  place  to  place ;  indeed,  all  persons  who  make  it  a  busi 
ness  to  carry  goods  for  any  who  may  wish  to  employ  them, 
for  a  reward  or  hire,  are  considered  as  common  carriers. 

SEC.  2.  But  a  forwarding  merchant,  who.  has  no  interest 
in  the  conveyances  which  carry  away  the  goods  intrusted  to 
him,  is  not  a  common  carrier  (Plaits  vs.  Hibbard,  7  Cow. 
497) ;  nor  the  owner  of  a  cart  or  carriage,  let  for  a  specific 
space  of  time,  to  go  to  such  places  as  the  employer  may 
direct,  as  a  cab-driver  or  a  hackney-coachman,  such  is  not  a 
carrier.  Brind  vs.  Dale,  8  Car.  &  P.  207. 

SEC.  3.  And  a  distinction  must  be  made  between  one 
who  carries  goods  only  occasionally,  although  he  may  re 
ceive  hire,  and  a  common  carrier — a  man  who  is  employed 
for  hire,  pi*o  liaec  vice  only,  and  does  not  make  the  carriage 
of  goods  his  constant  employment,  is  not  liable  as  a  common 
carrier.  Satterke  vs.  Groat,  1  Wend.  272. 

Obligations  of  Common  Carriers. 

SEC.  4.  Common  carriers  of  goods  are:  1.  Bequired  to 
fulfill  certain  obligations  arising  from  the  nature  of  their 
employment.  2.  Liable  for  certain  losses.  3.  Entitled  to 
certain  rights  either  under  an  express  or  implied  agreement. 
Each  of  these  will  be  separately  examined. 


COMMON  CAKRIERS.  123 

SEC.  5.  Of  the  Obligations  of  Common  Carriers. — A  com 
mon  carrier  is  obliged  to  receive  and  carry  all  goods  offered 
to  Lira  for  transportation,  when  he  has  room  for  such  goods, 
upon  receiving  a  just  compensation  or  hire,  and,  unless  he 
has  a  valid  excuse,  he  is  liable  to  an  action  for  not  doing  so. 
Bac.  Ab.  Carriers;  1  Saund.  312. 

SEC.  6.  The  proper  time  to  deliver  them  to  him,  is  when 
he  is  about  to  set  out  on  his  accustomed  journey.  Lane  vs. 
Cotton,  1  Ld.  Raym.  652. 

SEC.  7.  On  receiving  the  goods,  he  is  bound  to  take  the 
utmost  care  of  them ;  to  obey  the  directions  of  the  owner  in 
respect  to  them ;  to  carry  them  safely  to  the  proper  place  of 
destination ;  to  make  a  right  delivery  of  them  there  in  proper 
time,  according  to  the  usage  of  trade,  or  in  the  course  of 
business.  He  is  required  to  provide  proper  conveyances; 
if  with  wagons,  good  horses  and  drivers ;  if  by  water,  good 
vessels  and  a  sufficient  crew  (Bell  vs.  Bead,  4  Binn.  127; 
Hart  vs.  Allen,  2  Watts,  115),  and  to  proceed,  without  devia 
tion,  to  his  place  of  destination — for  a  voluntary  deviation 
will  render  him  responsible  for  inevitable  accidents.  Davis 
vs.  Garrett,  6  Bing.  716. 

SEC.  8.  Of  the  Liability  of  a  Common  Carrier — For  what 
Losses. — By  the  common  law,  a  common  carrier  is  in  gene 
ral  liable  for  all  losses  which  may  occur  to  property  intrusted 
to  his  charge  in  the  course  of  business,  unless  the  loss  has 
happened :  1.  By  the  act  of  God,  or  inevitable  accident.  2. 
By  the  act  of  the  enemies  of  the  United  States.  3.  By  the 
act  of  the  owner  of  the  property.  4.  Because  the  carrier 
has  given  notice  limiting  his  liability;  or,  5.  Because  he 
is  protected  by  some  rule  of  law. 

SEC.  9.  Of  the  Act  of  God. — By  the  phrase:  "An  act  of 
God,"  is  meant  those  natural  accidents  arising  from  physi 
cal  causes,  which  cannot  be  prevented;  such  as  lightning, 
earthquakes,  tempests,  etc.  It  is  something  in  opposition 
to  the  act  of  man.  Forward  vs.  Pittard,  1  T.  R.  33.  For 
losses  by  the  act  of  God,  a  carrier  is  not  responsible  accord 
ing  to  the  maxim  ' '  the  act  of  God  works  an  injury  to  no 
man."  The  loss  in  such  cases  falls  upon  the  owner. 

SEC.  10.  When  the  carriage  is  by  water,  the  bill  of  lading 
usually  contains  a  proviso  that  the  carrier  shall  not  be  lia- 


124  JUSTICES'  TREATISE. 

ble  for  "perils  of  the  sea."  The  exact  import  of  this  ex 
pression  is  not  clearly  settle'd.  In  a  strict  sense,  it  signi 
fies  the  natural  accidents  peculiar  to  the  sea;  but  in  more 
than  one  instance,  it  has  been  held  to  extend  to  events  not 
attributable  to  natural  causes.  For  instance :  The  meaning 
of  these  words  has  been  held  to  include  a  capture  by  pirates 
on  the  high  seas;  in  another,  a  loss  occasioned  by  collision 
of  two  ships,  where  no  blame  was  imputable  to  either,  or 
not  to  the  injured  ship.  Marsh  vs.  Blythe,  1  McCord,  360. 
A  loss  by  jettison,  when  no  blame  is  imputable  to  the  mas 
ter,  is  also  considered  a  j^eril  of  the  sea.  Jones  on  Bailm. 
108;  1  Caines,  43.  Numerous  other  accidents  have  also 
been  classed  as  perils  of  this  kind. 

SEC.  11.  The  words  perils  of  the  sea,  on  the  western  waters 
of  the  United  States,  signify  perils  of  the  river.  Jones  vs. 
Pitcher,  3  Stew.  (Ala.)  176. 

SEC.  12.  Of  the  Enemies  of  the  United  States. — By  ene 
mies,  it  is  understood  public  enemies,  with  whom  the  Unit 
ed  States  are  at  open  war,  and  not  merely  robbers,  thieves 
or  other  private  depredators.  Losses  by  the  latter  must  be 
borne  by  the  common  carrier,  while  he  is  excused  in  case 
the  loss  has  been  sustained  from  the  former.  It  would  be 
unreasonable  to  hold  a  carrier  responsible  for  the  acts  of  a 
public  enemy,  which  the  government,  which  is  bound  to 
protect  the  common  carrier,  could  not  resist;  but  the  same 
reason  does  not  apply  to  the  case  of  common  robbers  and 
thieves,  because  the  carrier  could  easily  defraud  his  em 
ployers  by  colluding  with  them,  and,  to  prevent  this,  com 
mon  carriers  are  made  responsible  for  the  act  of  such  male 
factors. 

SEC.  13.  Loss  Occasioned  by  the  Owner. — If  in  conse 
quence  of  the  negligence  of  the  owner  in  not  putting  his 
goods  in  a  fit  condition  for  the  journey,  any  loss  arise,  it 
will  fall  on  him,  unless  the  carrier  has  by  implication  or 
expressly  assumed  the  care  of  them  in  such  condition.  Beck 
vs.  Evens,  16  East,  245;  Stewards.  Craivley,  2  Stark.  324. 

SEC.  14.  Fraud  in  this,  like  every  other  case,  will  render 
the  contract  a  mere  nullity.  If,  therefore,  the  owner  of  the 
goods  use  fraud  or  artifice  to  deceive  him,  and  in  conse 
quence  of  it  his  risk  is  increased  or  his  vigilance  is  lessened, 


COMMON  CAEEIEKS.  125 

the  loss  which  may  follow,  must  be  borne  by  the  owner. 
Edwards  vs.  Shessath,  1  East,  604. 

SEC.  15.  Whether  a  bare  concealment  would  be  such  a 
fraud,  seems  doubtful,  but  if  the  carrier  make  an  inquiry, 
and  a  false  answer  is  given,  he  will  not  be  liable  for  the  loss. 
Rile y  vs.  Ihorne,  5  Bing.  on  Ins.  217. 

SEC.  16.  Of  Notices. — Attempts  have  been  made  by  car 
riers  to  limit  their  responsibility,  by  giving  notices  that 
they  will  not  be  responsible  for  the  carriage  of  certain 
goods  without  loss,  or  that  those  goods  are  carried  at  the 
risk  of  the  owner.  Though  the  validity  of  these  notices  has 
been  established  to  a  certain  extent  in  England,  under  the 
controlling  influence  of  certain  statutes  (Story  on  Cont.  Sec. 
750),  in  the  United  States  they  have  generally  been  declared 
void  as  being  contrary  to  the  policy  of  the  law,  for  the  un 
dertaking  of  a  common  carrier  is  to  carry  safely,  and  the  no 
tice  is  to  exempt  him  from  this  obligation.  Hollister  vs.  New- 
lin,  19  Wend.  234;  Cole  vs.  Goodwin,  19  Wend.  251.  In 
Pennsylvania,  a  carrier  may  limit  his  common-law  responsi 
bility  by  a  particular  agreement,  but  the  exception  will  be 
strictly  interpreted;  he  cannot  exempt  himself  from  all  re 
sponsibility.  Atwood  vs.  Reliance  Company,  9  Watts.  (Pa.) 
88. 

SEC.  17.  Exemption  of  the  Carrier  by  a  Rule  of  Law. — The 
reason  why  a  common  carrier  is  responsible  for  the  loss  of 
goods  is,  that  they  are  completely  under  his  control,  and 
the  policy  of  the  law  renders  him  liable  for  their  loss  on  this 
account.  But  "when  the  reason  of  a  rule  ceases,  the  rule 
itself  should  have  no  force.  Accordingly,  when  a  carrier  has 
no  longer  the  control  of  property,  he  cannot  be  made  re 
sponsible.  This  is  the  case  when  intelligent  beings  as 
slaves,  are  the  property  which  he  has  engaged  to  transport. 
The  rule  in  cases  of  this  kind  is,  that  the  carrier  is  respon 
sible  only  for  want  of  care  and  skill.  Boyce  vs.  Anderson, 
2  Pet.  150;  Clark  vs.  McDonald,  4  McCord,  223. 

SEC.  18.  Of  tJie  Beginning  and  End  of  the  Risk  of  the  Car 
rier. — The  carrier's  liability  commences  the  moment  the 
goods  are  delivered  to  him  or  to  his  authorized  agent  for 
carriage,  and  accepted  either  expressly  or  by  implication. 
Selway  vs.  Holloway,  Ld.  Raym.  46. 


126  JUSTICES'  TBEATISE. 

But  the  goods  must  be  completely  under  his  sole  control, 
for  if  an  agent  be  sent  with  them  to  take  especial  care  of 
them,  his  liability  does  not  attach.  If,  however,  a  servant 
happens  to  go  with  them,  but  there  is  no  intention  to  let 
him  meddle  with  the  care  of  the  goods,  the  carrier  will  be 
answerable  for  the  loss.  Marsh  on  Ins.  B.  1,  C.  7,  S.  5. 

SEC.  19.  The  liability  of  the  carrier  ends  the  moment  the 
goods  are  deposited  at  their  place  of  destination,  and  when 
no  express  agreement  has  been  made,  such  place  may  be  de 
termined  by  usage,  for  usage  enters  into  every  contract, 
unless  there  is  an  express  agreement  to  the  contrary.  Chick- 
ering  vs.  Fowler,  4  Pick.  371. 

SEC.  20.  ,  A  delivery  on  the  usual  wharf  will,  in  such  case, 
be  sufficient :  provided,  notice  be  given  to  the  consignee. 
1  Eawle,  203  ;  4  Pick.  341).  In  such  case,  the  delivery  must 
be  made  at  some  reasonable  time,  for  an  offer  to  deliver  at 
an  unreasonable  time  will  not  discharge  the  carrier  from  his 
responsibility.  Hill  vs.  Humphreys,  5  Watts  &  Serg.  123. 
But  when  there  is  neither  agreement  nor  usage,  the  goods 
must  be  delivered  to  the  consignee  in  person,  (Story  Sail. 
Sees.  508,  539,  553),  and  the  moment  the  latter  has  posses 
sion  the  carrier's  risk  is  ended. 

SEC.  21.  Of  the  Rights  of  a  Common  Carrie^'. — A  common 
carrier  of  goods  is  entitled  in  all  cases  to  demand  the  price 
of  carriage  before  he  receives  the  goods ;  and,  if  not  paid, 
he  may  refuse  to  take  charge  of  them ;  if,  however,  he  re 
ceives  them  without  the  hire  being  paid  he  may  afterward 
recover  it  by  action,  and  he  has  a  lien  on  the  goods  till  he 
is  paid,  unless  he  waives  it ;  and  if  once  the  right  is  waived 
the  lien  is  gone,  and  cannot  be  resumed. 

SEC.  22.  The  consignor  or  shipper  is  commonly  bound 
to  the  carrier  for  the  hire  or  freight  of  goods.  Moore  vs. 
Wilson,  1  T.  E.  659. 

SEC.  23.  The  consignee  also  becomes  bound  for  it  when 
ever  he  expressly  promises  or  receives  the  goods  with  a  bill 
of  lading  containing  the  usual  clause,  that  the  carrier  will 
deliver  the  goods  to  the  consignee,  "he  or  they  paying 
freight."  Abbott  Ship.,  Part  3,  C.  734. 

SEC.  24.  The  price  or  consideration  for  carrying  goods 
on  land  is  called  the  hire;  for  carrying  them  on  water,  freight. 


COMMON  CABBIEKS.  127 

SEC.  25.  Of  Carriers  of  Passengers. — Carriers  of  passen 
gers  may  be  distinguished  into  :  1st,  carriers  by  land  ;  and 
2d,  carriers  by  water. 

SEC.  26.  'Of  Carriers  by  Land. — These  must  be  consid 
ered  with  regard  to  :  1st,  their  obligations  ;  2nd,  their  lia 
bility  ;  and  3d,  their  rights. 

SEC.  27.  Of  their  Obligations. — They  are  bound  to  carry 
all  passengers  who  offer  themselves,  against  whose  personal 
character  and  conduct  there  are  no  just  objections :  pro 
vided,  they  have  sufficient  accommodations,  and  the  passage 
money  has  been  offered.  Pichford  vs.  Grand  Junction  Rail 
way  Co.,  8  M.  &  W.  372. 

SEC.  28.  They  have  no  more  right  to  refuse  a  passenger 
than  an  innkeeper  has  to  turn  away  a  guest.  Boetherton  vs. 
Wood,  3  Brod.  &  B.  54. 

SEC.  29.  They  are  also  required  to  provide  sufficient  car 
riages,  with  suitable  horses  and  harness;  careful  drivers,  of 
reasonable  skill  and  good  habits;  not  to  overload  the^car- 
riage,  either  with  passengers  or  baggage;  to  take  care  of  the 
baggage  which  each  passenger  is  allowed  to  have;  to  stop 
at  the  usual  places,  and  allow  such  time  as  is  commonly  em 
ployed  for  taking  refreshments;  to  use  all  ordinary  precau 
tions  for  the  safety  of  passengers  on  the  road;  to  carry  pas 
sengers  to  the  end  of  their  journey;  to  put  them  down  at 
the  usual  places  of  stopping,  unless  there  has  been  a  special 
contract  to  the  contrary,  and  then  to  put  them  down  at  the 
place  agreed  upon.  Story  Bailm.  Sees.  591-598;  HcKlnney, 
vs.  Neil. 

SEC.  30.  Of  the  Liabilities  of  Carriers  of  Passengers. — Their 
liabilities  toward  passengers  arise  from  a  neglect  to  use  ex 
traordinary  care  and  diligence  to  carry  safely  those  whom 
they  take  in  their  coaches;  but  they  are  not  responsible  for 
accidents,  when  they  use  all  reasonable  skill  and  diligence. 
Ware  vs.  Gary,  11  Pick.  106. 

SEC.  31.  For  the  baggage  of  the  passengers  they  are  lia 
ble  as  common  carriers.  Hollistervs.  Neidin,  19  Wend.  234; 
Coles  vs.  Goodwin,  19  Wend.  251. 

SEC.  32.  Of  tlie  Rights  of  Carriers  of  Passengers. — The 
rights  of  such  earners  are  first,  to  demand  and  receive  their 
fare  at  the  time  the  passenger  takes  his  seat,  and  if  the  fare 


128  JUSTICES'  TREATISE. 

be  but  partially  paid,  and  the  passenger  does  not  attend  at 
the  time  of  the  departure  his  seat  may  be  given  to  another; 
but  if  the  whole  fare  be  paid,  he  has  a  right  to  come  in  at 
anyplace  on  the  journey  for  which  he  has  paid.  Ker  vs. 
Mountain,  1  Esp.  26.  The  carrier  has  a  lien  on  the  baggage 
of  his  passenger  for  his  fare  or  passage  money,  but  not  on 
the  person  of  the  passenger,  nor  the  clothes  he  has  on.  Ab 
bott  on  Shipping,  Part  3,  C.  3,  S.  11. 

SEC.  33.  Of  Carriers  of  Passengers  by  Water. — Carriers 
of  passengers  by  water  are  in  general  bound  by  the  same 
rules  as  carriers  by  land,  and  liable  for  the  same  faults  both 
as  to  the  person  and  to  the  baggage  of  the  passenger. 

SEC.  34.  Salutary  regulations  have  been  made  by  Con 
gress,  as  to  the  amount  of  provisions  or  sea-stores  which 
must  be  taken  on  board  of  vessels  bound  to  or  from  the 
United  States,  intended  for  the  carriage  of  passengers,  and 
as  to  the  number  of  passengers  which  vessels  may  take. 
Act  of  Congress,  March  2d,  1819,  and  act  of  22d  of  Feb 
ruary,  1847. 

"Who  are  Common  Carriers. 

SEC.  35.  Proprietors  of  stage-coaches  are  common  car 
riers.  13  CaL  602. 

SEC.  36.  Thl  law  regards  ferrymen  as  common  carriers, 
and  has  imposed  upon  them  the  same  duties  and  liabilities. 
5  Col.  364.' 

SEC.  37.  Under  the  general  railroad  law,  all  railroads  are 
compelled  to  act  as  common  carriers  for  the  conveyance  of 
all  passengers  and  property  that  may  come  to  their  road  for 
that  purpose.  23  CaL  324. 

SEC.  38.  The  towing  of  a  vessel  out  to  sea  by  a  steamer, 
is  the  transportation  of  property,  without  resorting  to  any 
other  than  the  necessary  construction  arising  from  the  ge 
neric  and  common  meaning  assigned  to  the  word  ' '  transport, " 
and  therefore  brings  the  case  within  the  law  of  common 
carriers*  who  are  denned  as  persons  engaged  in  the  trans 
portation  of  goods  for  hire.  6  CaL  470. 

SEC.  39.  Whether  a  steam-tug  is  a  common  carrier  or 
not,  she  holds  herself  out  to  the  world  for  engagement  in 
a  business  for  hire,  requiring  prudence,  skill,  and  the  use 


COMMON   CAKEIEES.  129 

of  adequate  means  to  perform  the  contracts  which  she  un 
dertakes,  and  this  constitutes  a  stipulation  of  their  exist 
ence,  which  by  clear  construction,  enters  into  the  contract, 
and  forms  a  part  of  it.  6  Cal.  471. 

The  fact  that  the  owner  of  the  ship  lost  while  being  towed 
to  sea,  was  the  agent  for  the  owners  of  the  steam-tug,  does 
not  relieve  the  latter  from  any  of  the  obligations  under 
which  they  contract  with  others.  6  Cal.  471. 

SEC.  40.  In  an  action  for  damages  brought  by  a  pas 
senger  against  a  stage  company,  for  injuries  to  plaintiff, 
caused  by  carelessness  of  the  driver  in  overturning  the  coach : 
Held,  that  the  fact  that  before  the  accident  the  driver  was 
informed  that  a  passenger  was  to  get  out  at  plaintiff's  des 
tination,  and  that  after  the  accident  the  agent  of  defend 
ants  informed  the  driver  of  a  coach  which  had  been  pro 
vided  to  convey  the  passengers  from  the  scene  of  *the 
overturning,  that  the  plaintiff  was  to  stop  at  the  destination 
designated,  was  a  sufficient  recognition  of  the  fact  that  the 
plaintiff  was  a  passenger,  to  establish  prima  facie  the  allega 
tion  of  contract  to  safely  carry.  6  Cal.  233. 

SEC.  41.  The  fact  that  a  vessel,  lost  while  being  towed 
out  to  sea,  is  insured,  does  not  divest  the  owner  of  the  right 
of  action  for  damages  for  her  loss,  especially  in  the  case  of 
a  mere  partial  insurance,  for  in  such  a  case  the  abandon 
ment  by  the  owner  only-transfers  his  interest  so  far  as  that 
interest  is  concerned  by  the  policy.  6  Cal.  470,  471. 

A  recovery  by  the  owner  in  such  an  action  will  bar  another 
action  for  the  same  cause,  and  therefore  the  defendant  can 
not  raise  the  objection  that  the  action  is  not  brought  by  the 
real  party  in  interest.  6  Cal.  471. 

SEC.  42.  An  innkeeper,  like  a  common  carrier,  is  the 
insurer  of  the  goods  of  his  guest,  and  is  bound  to  keep  them 
safe  from  burglars  and  robbers  without,  as  well  as  from 
thieves  within,  his  house;  but  he  can  be  held  to  this  strict 
liability  only  for  such  goods  as  are  brought  into  his  house 
by  travelers  in  the  character  of  guests.  As,  in  order  to 
entitle  the  plaintiff  to  recover,  it  is  necessary  for  him  to 
establish  his  character  of  guest  in  the  inn  of  the  defend 
ant;  so  also  it  is  equally  necessary  that  it  should  appear  that 
his  goods  were  taken  there  in  the  capacity  of  guest.  2 


130  JUSTICES'  TREATISE. 

Stephen's  Comm.  133.  The  liability  of  the  innkeeper  results 
from  the  relation  of  guest  in  which  the  traveler  stands  to 
him,  and  extends  only  to  those  things  which  properly  per 
tain  to  him  in  that  relation.  It  does  not  necessarily  follow 
that  the  strict  responsibility  can  be  imposed  on  an  innkeeper 
for  all  property  which  his  guest  may  choose  to  bring  into 
the  inn,  after  he  has  been  received  infra  hospitium;  or  that 
the  latter  may  make  the  former  a  compulsory  depository  of 
any  amount  of  goods  or  treasure  which,  during  his  sojourn 
in  the  inn,  he  may  desire  to  keep  secure.  The  innkeeper  is 
bound  by  law  to  receive  the  traveler  and  his  goods,  and  for 
a  refusal,  in  case  he  has  sufficient  accommodations  for  him, 
he  is  liable  not  only  to  an  action  on  the  case  for  the  private 
damage,  but  to  indictment  for  the  public  wrong.  3  Black- 
stone's  Comm.  164;  4  Stephen's  Comm.  296,  note  n.  Inns 
are«instituted  for  passengers  and  wayfaring  men;  and  the 
keepers  thereof  can  be  held  to  the  strict  legal  liability  only 
for  such  goods  as  are  brought  into  their  inns  by  travelers 
in  the  character  of  guests.  It  would  be  too  great  a  re 
sponsibility  if  that  liability  could  be  extended  so  as  to  cover 
any  conceivable  amount  of  money  or  gold  dust  which  the 
traveler,  after  he  has  become  a  guest,  might  be  disposed  to 
thrust  into  the  custody  of  his  host,  and  thus  compel  him  to 
become  the  insurer  of  its  safety.  It  is  a  question  which 
the  jury  should  decide,  whether  the  bundle  was  taken  to 
the  inn  of  the  defendant  by  the  plaintiff  in  his  character  of 
guest,  in  which  event  the  defendant's  liability  would  cover 
all  losses,  or  whether,  after  the  plaintiff  became  a  guest 
with  the  defendant,  it  was  deposited  there  in  the  nature  of 
an  ordinary  bailment,  in  which  case  the  defendant  would  be 
bound  to  exercise  no  more,  at  the  farthest,  than  ordinary 
diligence,  and  would  be  answerable,  certainly,  for  nothing 
more  than  ordinary  neglect.  1  Cal.  230,  231. 

SEC.  43.  The  rules  of  law  which  govern  the  liability  of 
telegraph  companies  are  not  new.  They  are  old  rules  applied 
to  new  circumstances.  Such  companies  hold  themselves 
out  to  the  public  as  engaged  in  a  particular  branch  of  busi 
ness,  in  which  the  interests  of  the  public  are  deeply  con 
cerned.  They  propose  to  do  a  certain  service  for  a  given 
price.  There  is  no  difference  in  the  general  nature  of  the 


COMMON  CARRIERS.  131 

legal  obligation  of  the  contract  between  carrying  a  message 
along  a  wire  and  carrying  goods  or  a  package  along  a  route. 
The  physical  agency  may  be  different,  but  the  essential 
nature  of  the  contract  is  the  same.  The  breach  of  contract 
in  one  case  or  the  other,  is,  or  may  be,  attended  with 
the  same  consequences;  and  the  obligation  to  perform  the 
stipulated  duty  is  the  same  in  both  cases.  The  importance 
of  the  discharge  of  it  in  both  respects  is  the  same.  In 
both  cases  the  contract  is  binding,  and  the  responsibility 
of  the  parties  for  the  breach  of  duty  is  governed  by  the 
same  general  rules.  13  Ccd.  424,  425. 

Thus,  when  A  contracts  with  a  telegraph  company  to  have 
his  dispatch  transmitted,  authorizing  his  agent  to  secure  a 
debt  due  him  from  a  third  party,  by  attachment,  and  this 
service  is  so  negligently  performed  that  other  creditors  of 
the  common  debtor  obtain  the  first  attachment,  and  'exhaust 
the  assets  of  the  debtor — which  would  not  have  been  the 
case  had  the  telegraph  company  performed  its  contract 
within  a  reasonable  time,  the  company  is  liable  not  only  for 
the  cost  of  the  dispatch,  but  for  the  amount  of  A's  claim, 
which  constitute  the  natural  and  proximate  damages  result 
ing  from  the  breach  of  contract.  13  Col.  422. 

SEC.  44.  There  is  no  difficulty  either  in  estimating  the 
damages  or  ascertaining  the  cause  of  them.  The  process  of 
ascertainment  is  the  same  in  this  as  in  other  cases  of  car 
riers.  The  breach  of  the  contract  entitles  the  plaintiff  to 
nominal  damages,  if  no  real  damages  are  shown.  The  ques 
tion  of  real  or  special  damages,  is  a  question  of  fact,  and 
this  question  is  dependent  upon  certain  considerations, 
which,  probably,  are  better  left  to  a  jury  under  appropriate 
instructions,  than  decided  by  the  court.  For  example,  the 
plaintiff  had  a  right  to  have  his  message  sent  according  to 
contract.  To  ascertain  the  damages  sustained  by  the  breach 
of  this  contract  these  inquiries  are  pertinent :  If  the  message 
had  been  sent,  was  the  plaintiff's  agent  at  the  time  in  the 
place  to  which  the  message  was  to  have  been  sent?  and 
would  he  have  received  it?  Next,  would  he  have  then  taken 
out  an  attachment  on  the  debt?  At  what  time  could  he 
have  done  this ?  Could  he  have  given  security?  Could  he 
have  procured  attorneys  to  issue  the  writ?  At  what  hour 


132  JUSTICES'  TREATISE. 

could  and  would  it  have  been  put  in  the  hands  of  the  sheriff"? 
Was  property  there  of  the  debtor's  subject  to  the  writ? 

SEC.  45.  If  a  telegraphic  dispatch  had  reached  the  agent, 
in  due  time,  the  agent  would  have  been  bound  to  act  at 
once;  it  is  to  be  presumed  that  he  would  have  done  so;  at 
least,  he  can  testify  whether  he  would.  If  he  had,  the  sher 
iff  is  to  be  presumed  willing  to  do  his  duty;  if  he  did  not, 
he  would  be  liable  to  the  plaintiff,  and  thereby  the  plaint 
iff's  debt  would  be  secured.  13  Col.  425. 

SEC.  46.  There  is  no  greater  difficulty  in  this  case  than 
in  a  large  class  of  cases  upon  which  courts  have  frequently 
adjudicated.  Take  the  case  of  an  attorney :  A  note  is  placed 
in  his  hands  for  collection;  he  fails  to  sue;  other  creditors 
sue  on  claims  placed  later  in  the  hands  of  other  attorneys; 
these  last  get  judgments,  and  exhaust  the  property  of  the 
common  debtor.  Upon  showing  that  the  claim  was  just; 
that  the  attorney  failed  to  sue;  that  other  creditors  sued 
and  obtained  judgment  on  suits  commenced  later  than  the 
time  the  attorney  might  and  ought  to  have  sued,  the  attor 
ney  is  held  liable.  It  is  true  that  it  might  be  argued  that 
all  the  intermediate  persons  might  or  might  not  have  neg 
lected  their  duties;  but  it  is  not  to  be  presumed.  On  the 
contrary,  the  presumption  of  law  is  that  persons  intrusted 
with  specific  duties  will  perform  them;  or  if  there  is  no  pre 
sumption  on  the  subject,  the  question  whether  they  would, 
if  the  defendant  had  done  his  duty,  becomes  a  question  of 
proof  for  a  jury  or  for  the  court.  13  Col.  425,  426. 

SEC.  47.  If  a  man,  on  the  eve  of  the  expiration  of  a  policy 
of  insurance  on  his  house,  telegraphs  to  his  agent  to  renew 
the  policy  immediately,  the  agent  having  the  funds  and  the 
authority  of  the  principal,  and  the  telegraph  company  neg 
lects  to  forward  the  message,  and  the  house  is  burned  a 
few  days  afterwards,  the  company  cannot  defend  upon  the 
ground  that  it  could  not  be  known  whether  the  agent  would 
have  insured  or  not. 

If  A  bargains  for  a  telegraphic  dispatch  to  his  agent  to 
protect  a  bill  of  exchange,  the  company  cannot,  if  it  neglects 
to  send  it,  set  up  that  the  damages  were  too  remote,  for  it 
could  not  be  known  whether  the  agent  would  have  taken  the 
bill  to  the  notary,  or  the  notary  have  protested,  or  given 


COMMON  CARRIERS.  133 

the  notice ;  or  whether,  if  the  notice  were  given,  the  indorser 
could  have  been  compelled  to  pay.  The  contract,  the  fact 
of  the  bill  being  due,  the  agent  in  the  place,  the  notary  at 
hand,  the  apparent  solvency  of  the  indorser,  would  be 
enough  to  charge  the  company.  At  all  events,  the  plaintiff 
would  be  allowed  to  prove  that  these  things  would  have 
been  done,  by  the  testimony  of  those  who  know  or  have 
opportunities  of  knowing  the  facts,  in  order  to  make  out  his 
case  against  the  company.  13  Col.  426. 

Liability  of  Common  Carriers. 

SEC.  48.  A  common  carrier  is  not  liable  for  the  loss  of 
goods  intrusted  to  him  for  carriage  wrhere  it  is  understood 
that  he  is  to  receive  no  compensation  for  the  carriage,  and 
where  he  has  exercised  ordinary  diligence  in  taking  care  of 
them ;  in  such  case  he  is  liable  only  as  a  bailee  without 
hire.  1  Cal.  350. 

SEC.  49.  A,  a  merchant  of  Sacramento,  was  in  the  habit 
of  having  gold  dust  carried  gratuitously  on  the  steamer  Neiv 
'  World,  from  that  place  to  San  Francisco,  the  owners  of  the 
steamer  refusing  to  carry  it  for  hire,  or  to  become  liable,  as 
common  carriers,  in  case  of  loss.  Held:  where  a  quantity 
of  gold  dust,  belonging  to  the  plaintiff,  was  stolen  from  the 
steamer,  without  any  negligence  on  the  part  of  the  master 
and  officers,  that  the  plaintiff  could  not  recover  its  value. 
1  Cal  350. 

SEC.  50.  It  is  clearly  the  duty  of  a  ferryman  to  provide 
suitable  boats,  and  all  the  conveniences  necessary  to  insure 
the  sftfe  transportation  of  persons  and  property.  22  Cal 
536. 

SEC.  51.  A  ferryman  who  takes  charge  of  a  team  driven 
upon  his  boat,  and  directs  an  attempt  to  cross  the  stream, 
is  liable  as  a  common  carrier  for  any  loss  that  ensues  in  con 
sequence  of  his  negligence  in  the  outfit  or  management  of 
his  boat,  notwithstanding  that  the  team  was  driven  upon  it 
at  the  time  of  peculiar  danger  and  contrary  to  his  express 
order.  22  Cal  534. 

SEC.  52.  As  soon  as  the  ferryman  signifies  his  assent  or 
readiness  to  receive  the  passenger,  he  becomes  liable  for  his 
safe  transit  and  delivery,  and  is  chargeable  with  any  acci- 


134  JUSTICES'  TEEATISE. 

derrt  occurring,  except  by  act  of  God  or  the  public  enemy. 
5  Cal.  364. 

SEC.  53.  It  is  the  duty  of  the  ferryman  to  see  that  the 
teams  are  safely  driven  on  board  of  the  boat.  If  the  ferry 
man  thinks  proper,  he  may  drive  himself,  or  may  unharness 
the  team,  or  unload  the  wagon  for  the  purpose  of  getting 
them  safely  on  board.  But  if  he  permits  the  party  to  drive 
himself  he  constitutes  him,  quoad  hoc,  his  agent,  and  is  re 
sponsible  for  all  accidents.  There  can  be  no  reason  why 
this  rule  should  not  apply  to  the  delivery  as  well  as  to  the 
receipt  of  goods  or  passengers.  5*Cal.  364. 

A  ferryman  undertakes,  to  safely  transport  passengers  or 
freight  from  and  to  certain  points,  and  from  the  moment 
that  he  receives  until  he  has  delivered  his  freight  in  a  proper 
and  safe  manner,  he  will  be  liable.  It  is  his  duty  to  provide 
suitable  boats  and  all  the  conveniences  necessary  for  trans 
portation.  5  Cal.  364. 

SEC.  54.  The  liability  of  a  railroad  company,  as  common 
carriers,  differs  from  their  liability  as  warehousemen.  23 
Cal.  268. 

SEC.  55.  As  common  carriers,  they  are  bound  to  safely 
transport  and  deliver  goods  to  the  point  of  their  destination, 
unless  the  same  are  lost  by  the  act  of  God  or  the  public 
enemy,  and  the  burden  of  proving  that  they  are  thus  lost 
rests  upon  the  company.  23  Cal.  268. 

.  SEC.  56.  When  the  goods  arrive  at  the  point  of  destina 
tion  and  are  placed  in  the  warehouse  of  the  company,  its 
liability  as  warehousemen  commences,  and  from  that  time 
it  is  bound  only  to  use  ordinary  car,e  and  diligence  in  safely 
keeping  and  delivering  the  goods;  and  the  burden  of  proof 
in  case  of  loss  is,  on  the  bailor.  23  Cal.  268,  269. 

SEC.  57.  In  an  action  against  a  railroad  company  for  loss 
of  goods  as  common  carriers,  where  the  proofs  render  it 
uncertain  whether  the  goods  are  lost  while  being  transported 
or  after  being  deposited  in  the  warehouse,  and  there  is  no 
proof  of  want  of  ordinary  care,  the  judgment  will  be  reversed. 
23  Cal.  269. 

SEC.  58.  Proprietors  of  stage-coaches  are  common  car 
riers,  and  common  carriers  are  insurers  or  warrantors  (with 
two  or  three  exceptions)  of  the  goods  they  undertake  to 


COMMON  CARRIERS.  135 

carry;  but  the  difference  in  the  character  of  the  subjects  of 
the  conveyance,  between  men  and  things,  creates  a  differ 
ence  in  the  rule  applying  to  them  respectively.  13  Col. 
602. 

SEC.  59.  Carriers  of  passengers  merely  for  hire,  are 
subject  to  the  same  responsibility  as  carriers  of  goods  for 
hire,  at  the  common  law,  so  far  as  respects  the  baggage  vof 
the  passengers.  But,  as  to  the  persons  of  the  passengers, 
a  different  rule  prevails.  Attempts  have  been  made  to 
extend  their  responsibility  as  to  the  persons  of  passengers, 
to  all  losses  and  injuries,  except  those  arising  from  the 
act  of  God,  or  from  the  public  enemies.  But  the  support 
of  this  doctrine  has  been  uniformly  resisted  by  the  courts, 
although  a  strict  responsibility  as  to  the  carriage  of  the  per 
sons  of  passengers  is  imposed  upon  such  passenger.  13 
Cal.  602. 

They  are  bound  to  provide  coaches  reasonably  strong  and 
sufficient  for  the  journey,  with  suitable  harness,  trappings, 
and  equipments,  and  to  make  a  proper  examination  thereof 
previous  to  each  journey.  In  other  terms,  they  are  bound 
to  provide  road-worthy  vehicles,  suitable  for  the  safe  trans 
portation  of  the  passengers.  If  they  fail  in  any  of  these 
particulars,  and  any  damage  or  injury  occurs  to  the  pas 
sengers,  they  will  be  responsible  to  the  full  extent  thereof. 
Hence,  it  has  been  held,  that  if  there  is  any  defect  in  the 
original  construction  of  a  stage-coach,  as  for  example,  in 
an  axletree,  although  the  defect  be  out  of  sight,  and  not 
disoernable  upon  a  mere  ordinary  examination,  yet,  if  the 
defect  might  be  discovered  by  a  more  minute  examination, 
and  any  damage  is  occasioned  thereby,  the  coach'  proprie 
tors  are  answerable  therefor.  The  same  rule  will  apply  to 
any  other  latent  defect,  which  might  be  discovered  by  more 
minute  examination  and  more  exact  diligence,  whereby  the 
work  is  not  road-worthy,  and  a  damage  thereby  occurs  to 
any  passenger.  In  this  respect  there  does  not  seem  to  be 
any  difference  between  the  case  of  a  coach  which  is  not 
road-worthy,  and  of  a  ship  which  is  not  sea-worthy,  as  to 
the  implied  obligation  of  the  owner.  13  Cal.  602,  603. 

SEC.  60.  In  the  next  place,  they  are  bound  to  provide 
careful  drivers,  of  reasonable  skill  and  good  habits,  for 


136  JUSTICES'  TREATISE.- 

the  journey,  and  to  employ  horses  which  are  steady,  and 
not  vicious,  or  likely  to  endanger  the  safety  of  the  passen 
gers.  The  coachman  must  have  competent  skill,  he  must  be 
well  acquainted  with  the  road  he  undertakes  to  drive,  he 
must  be  provided  with  steady  horses,  a  coach  and  harness 
of  sufficient  strength  and  properly  made,  and  also  lights 
by  night.  If  there  is  the  least  failure  in  any  of  these  things, 
the  duty  of  the  coach  proprietors  is  not  fulfilled,  and  they 
are  responsible  for  any  injury  or  damage  that  happens.  13 
Col.  603. 

SEC.  61.  In  the  next  place,  they  are  Abound  not  to  over- 
road  the  coach,  either  with  passengers  or  luggage,  and  they 
are  to  take  care  that  the  weight  is  suitably  adjusted,  so  that 
the  coach  is  not  top-heavy,  and  made  liable  to  overset.  13 
Gal.  603. 

SEC.  62.  The  liabilities  of  such  carriers  naturally  flow 
from  their  duties.  As  they  are  not,  like  common  carriers 
of  goods,  insurers  against  all  injuries,  except  by  the  act  of 
God,  or  by  public  enemies,  the  inquiry  is  naturally  presented 
what  is  t^ie  nature  and  extent  of  their  responsibility  ?  It  is 
certain  that  their  undertaking  is  not  an  undertaking  abso 
lutely  to  convey  safely.  But  although  they  do  not  war 
rant  the  safety  of  the  passengers,  at  all  events,  yet  their 
undertaking  and  liability  go  to  the  extent  that  they  and 
their  agents  possess  competent  skill,  and  that  they  will  use 
all  due  care  and  diligence  in  the  performance  of  their  duty. 
But  in  what  manner  are  we  to  measure  this  due  care  and 
diligence?  Is  it  ordinary  care  and  diligence  which  will 
make  them  liable  only  for  ordinary  neglect  ?  Or  is  it  ex 
traordinary  care  and  diligence,  which  will  render  them  lia 
ble  for  slight  neglect?  As  they  undertake  for  the  carriage 
of  human  beings,  whose  lives,  and  limbs,  and  health,  are  of 
great  importance,  as  well  to  the  public  as  to  themselves,  the 
ordinary  principle  in  criminal  cases,  where  persons  are  made 
liable  for  personal  wrongs  and  injuries  arising  from  slight 
neglect,  would  seem  to  furnish  the  true  analogy  and  rule.  It 
has  been  accordingly  held  that  passenger  carriers  bind  them 
selves  to  carry  safely  those  whom  they  admit  into  their 
coaches,  as  far  as  human  care  and  foresight  will  go ;  that  is, 
for  the  utmost  care  and  diligence  of  very  cautious  persons; 


COMMON  CARRIEKS.  137 

and  of  course  they  are  responsible  for  any  even  the  slight 
est  neglect.  13  Cat.  604. 

SEC.  63.  When  injury  or  damage  happens  to  the  pas 
sengers,  by  the  breaking  down  or  overturning  of  the  coach, 
or  by  any  other  accident  occurring  on -the  ground,  the  pre 
sumption  prima  facie  is,  that  it  occurred  by  the  negligence 
of  the  coachman;  and  the  onus  prbbandi  is  on  the  proprie 
tors  of  the  coach  to  establish  that  there  has  been  no  negli 
gence  whatsoever,  and  that  the  damage  or  injury  has  been 
occasioned  by  inevitable  casualty,  or  by  some  cause  which 
human  care  and  foresight  could  not  prevent;  for  the  law 
will,  in  tenderness  to  human  life  and  limb,  hold  the  pro 
prietors  (604)  liable  for  the  slightest  negligence,  and  will 
compel  them  to  repel,  by  satisfactory  proofs,  every  imputa 
tion  thereof.  13  Col.  604,  605. 

SEC.  64.  "While  it  is  true  that  the  proprietors  of  a  stage 
coach  do  not  warrant  the  safety  of  passengers  in  the  same 
sense  that  they  warrant  the  safe  carriage  of  goods,  yet  they 
do  warrant  that  so  far  as  to  covenant  for  the  exercise  of  ex 
traordinary  diligence  and  care  to  insure  it;  and  they  do 
this  as  common  carriers.  13  Cal.  605. 

SEC.  65.  In  an  action  against  a  common  carrier  for 
negligence,  evidence  of  a  rule  qualifying  his  duties  under 
peculiar  circumstances  is  inadmissible  without  first  showing 
that  the  rule  was  known  to  the  plaintiff  either  directly  or 
constructively.  22  Cal.  534. 

SEC.  66.  The  degree  of  care  and  diligence  which  a  car 
rier  is  bound  to  bestow  upon  property  intrusted  to  him  for 
transportation,  depends  upon  its  value  and  quality.  Thus 
he  will  be  required  to  exercise  greater  care  and  diligence  in 
the  preservation  and  safe  delivery  of  a  box  of  coin  than  a 
keg  of  nails,  and  of  glassware  than  of  bar  iron.  The  value 
of  the  article  especially  is  an  important  ingredient  in  con 
sidering  the  question  of  negligence ;  for  that  will  be  gross 
negligence  in  the  case  of  a  parcel  of  great  value,  which 
would  not  be  in  the  case  of  a  common  article  of  little  value. 
The  general  rule  in  the  case  of  carriers  is  that  they  are 
bound  to  use  ordinary  diligence,  and  are  liable  for  ordi 
nary  neglect;  that  is,  they  must  take  such  care  of  the  prop- 
18 


138  JUSTICES'  TBEATISE. 

erty  intrusted  to   them   as  every  prudent  and  intelligent 
man  commonly  takes  of  his  own  goods. 

When  the  carrier  is  unable  to  ascertain  the  value  of  the 
goods  intrusted  to  his  care,  from  the  appearance  of  the 
package,  a  question  has  arisen  whether  he  must  inquire  its 
value,  or  whether  the  person  employing  him  must  inform 
him  of  the  value,  when  it  is  of  some  great  or  peculiar  value, 
which  is  not  disclosed  by  the  appearance  of  the  package 
itself.  The  carrier  has  no  right  to  open  a  (189)  letter  or 
package  intrusted  to  him  for  transportation,  in  order  to 
inform  himself  of  the  quality  or  value  of  its  contents.  How, 
then,  is  he  to  obtain  the  necessary  information  to  enable 
him  to  exercise  that  care  and  diligence  which  the  law  re 
quires  of  him — which  depends  to  a  great  extent  upon  the 
article  itself?  It  is  the  duty  of  every  person  sending  goods 
to  make  use  of  no  fraud  or  artifice  to  deceive  or  mislead 
the  carrier,  so  as  to  increase  the  risk,  or  to  lessen  his  care 
and  diligence.  If  any  fraud  or  unfair  concealment  is  used, 
the  carrier  will  not  be  responsible  for  any  loss,  and  it  will 
make  the  contract  between  them  null  and  void.  This  rule 
applies  to  all  cases  of  concealment  or  suppression  of  facts, 
and  to  all  false  statements  made  by  the  employer  for  the 
purpose  of  misleading  the  carrier. 

Still,  the  general  rule  has  been  held  to  be  that  the  em 
ployer  is  under  no  obligation  to  inform  the  carrier  of  the 
value  of  the  property  ;  and  the  mere  fact  that  he  does  not 
do  so,  in  the  absence  of  any  attempt  or  act  to  mislead  or 
deceive  him  as  to  the  value,  will  not  as  a  general  rule,  affect 
the  legal  liability  and  responsibility  of  the  carrier.  But  it 
is  also  held,  as  a  general  rule,  that  the  carrier  has  a  right  to 
inquire  as  to  the  value  and  character  of  the  property,  and 
to  have  a  correct  answer.  If  he  is  deceived  in  any  way, 
or  a  false  answer  is  given,  in  such  case  he  will  not  be  re 
sponsible  for  any  loss.  It  has  also  been  held,  as  a  general 
rule,  that  if  he  makes  no  inquiry,  and  no  artifice  is  made 
use  of  to  mislead  him,  then  he  is  responsible  for  any  loss, 
however  great  the  value  may  be.  * 

These  rules  were  adopted  in  cases  where  the  articles 
transported  were  goods  of  the  kind  ordinarily  transported 
by  carriers,  before  the  more  modern  changes  in  the  modes 


COMMON  CARKIEKS.  139 

of  doing  mercantile  business.  But  recently  a  new  kind  of 
business  lias  grown  up  in  connection  with  the  carriage  of 
goods,  and  that  is,  the  transmission  of  letters  put  up  in 
sealed  envelopes.  It  is  an  important  question  whether  this 
rule,  making  it  the  duty  of  the  carrier  to  inquire  as  to  the 
value,  properly  applies  to  the  express  business.  There  are 
some  good  reasons  for  the  rule  in  the  case  of  ordinary 
packages  of  goods,  which  are  from  necessity  received  per 
sonally  by  the  carrier  or  his  servants.  But  those  reasons 
do  not  apply  to  the  receipt  and  transmission  of  letters.  The 
greater  portion  of  such  letters  are  received  by  the  letter- 
carriers  in  boxes,  and  it  is  only  a  very  small  portion  of  the 
letters  that  are  ever  received  by  the  carriers  or  their  em 
ployees  in  person.  This  plan  of  doing  business  has  become 
necessary.  It  would  be  almost  an  impossibility  for  the  car 
rier  to  make  the  inquiry  as  to  the  value  of  the  contents  of 
each  letter  received.  The  law  does  not  require  impossibil 
ities,  or  attempt  to  deprive  the  public  of  the  means  neces 
sary  for  the  convenient,  safe  and  speedy,  transmission  of 
their  letters.  On  the  contrary,  it  will  adapt  its  rules  to 
the  new  and  varying  systems  of  business,  so  that  justice 
may  be  done  to  all  parties.  Where  the  reason  ceases  the 
rule  ceases.  This  rule  should  be  so  far  modified  as  to 
except  letters  from  its  application,  and  relieve  the  carriers 
from  the  necessity  of  making  the  inquiry  of  the  value  of 
the  contents  of  the  letters  received  by  him,  making  it  the 
duty  of  the  person  employing  the  carrier  to  inform  him 
of  such  value,  in  all  cases  where  he  desires  to  hold  the 
latter  responsible  for  any  loss  beyond  that  of  an  ordinary 
letter  not  containing  articles  or  papers  of  special  value. 
By  means  of  the  notice,  the  carrier  will  be  required  to 
use  such  kind  of  care  and  diligence  as  the  law  demands 
in  cases  of  that  kind,  where  articles  of  value  are  placed  in 
his  charge. 

It  is  a  general  rule  in  the  law  of  bailments,  that  if  the 
plaintiff  has  brought  the  injury  on  himself,  or  has  been 
guilty  of  negligence,  and  that  negligence  in  any  way  con 
curred  in  causing  the  loss  or  damage,  he  is  not  entitled  to 
recover.  This  rule  is  most  frequently  applied  to  cases  of 
damage  occasioned  by  obstructions  in  a  highway,  to  colli- 


140  JUSTICES'  TREATISE. 

sions  between  carriages  upon  land  and  vessels  upon  water. 
It  also  applies  to  common  carriers,  who  are  not  held  re 
sponsible  for  damages  caused  by  the  neglect  of  their  em 
ployer.  It  also  applies  to  innkeepers.  23  Col.  188-192. 

SEC.  67.  In  the  case  of  railroads  which  are  permanently 
established  by  law  as  a  mode  of  conveyance,  the  conduct 
ors  are  only  required  to  use  the  ordinary  care  pertaining  to 
that  description  of  business.  But  where  the  streets  of  a 
city,  forming  as  usual,  thronged  thoroughfares,  are  diverted 
from  their  ordinary  and  legitimate  uses,  by  special  license 
to  a  private  person,  for  his  own  benefit,  and  for  the  pursuit 
of  a  business  which  involves  constant  risk  and  danger,  no 
other  rule  is  consistent  with  the  safety  and  protection  of  the 
community,  than  that  which  demands  extraordinary  care. 
3  Col.  243. 

SEC.  68.  The  general  rule  of  law  is,  that  common  car 
riers  must  take  care  at  their  peril,  that  goods  placed  in  their 
charge  for  transportation  are  delivered  to  the  right  person ; 
for  otherwise  they  will  become  responsible.  But  the  ques 
tion  as  to  what  will  constitute  a  delivery  by  which  the  re 
sponsibility  of  the  carrier  will  cease,  depends  upon  a  variety 
of  circumstances — such  as  the  custom  of  particular  places, 
the  usage  of  particular  trades,  the  manner  of  transacting 
business  by  different  classes  of  carriers,  their  different  means 
of  transportation,  and  often  upon  special  or  implied  con 
tracts  between  the  parties.  Any  local  or  special  custom  or 
usage  upon  the  subject  will  govern  as  an  implied  term  in 
the  contract  between  the  parties.  Thus,  while  a  carrier  by 
the  ordinary  means  of  land  conveyance  will  be  required 
to  deliver  goods  transported  by  him  to  the  person  entitled 
thereto,  either  at  his  place  of  business  or  residence,  a  car 
rier  whose  means  of  conveyance  is  by  water  will  only,  as  a 
general  rule,  be  required  to  deliver  property  at  the  proper 
wharf  or  landing;  or  if  a  railroad,  at  the  proper  depot. 
Where  the  mode  in  which  the  carrier  transacts  his  busi 
ness,  however,  makes  it  his  duty  to  deliver  letters  and 
packages  to  the  owner  at  his  place  of  business  or  residence, 
according  to  the  character  of  the  articles,  this  delivery 
must  be  either  to  the  party  to  whom  the  letter  or  package 
is  addressed  in  person,  or  to  some  agent,  clerk  or  employee, 


CONTRACTS  OF  COBPOKATIONS.  141 

authorized  by  him  to  receive  the  same.  This  will  often 
depend  upon  the  established  mode  or  custom  of  doing 
business  between  the  carrier  and  his  customers.  23  Cal. 
188,  189. 

SEC.  69.  If  one  destroys  a  chattel  wantonly,  this  is  a 
wrongful  intent  expressed.  In  the  case  of  a  common  car 
rier,  who  delivers  goods  by  mistake  to  the  wrong  person, 
this  is  a  wrongful  intent  implied,  because  his  undertaking 
was  absolute  to  deliver  to  the  right  owner.  2  Cal,  573. 

SEC.  70.  The  delivery  of  goods  by  a  carrier  to  an  agent  of 
the  owner,  is  of  course  a  sufficient  delivery,  but  the  defense 
in  such  case  must  clearly  show  that  the  person  to  whom  $he 
goods  were  delivered,  as  agent,  was  duly  authorized  as 
such;  for  if  he  delivers  to  any  but  the  owner  he  does  so  at 
his  peril.  And  although  the  delivery  to  a  wrong  person  is 
made  by  mistake,  or  by  gross  imposition,  the  carrier  will 
be  responsible  for  the  value  of  the  goods.  2  Cal.  418. 

SEC.  71.  Authority  to  deliver  goods,  confers  no  author 
ity  to  take  them  back,  -or  to  countenance  the  shipment.  2 
Cal.  418. 

SEC.  72.  In  suits  against  common  carriers,  there  is  no 
reason  why  compensation  should  not  be  given  for  pain  of 
mind  as  well  as  body.  13  Cal.  601. 

SEO.  73.  In  an  action  against  a  common  carrier,  to 
recover  damages  for  the  loss  of  a  draft,  the  measure  of 
damages,  prima  facie,  is  the  amount  due  on  the  same  :  but 
the  defendant  is  at  liberty  to  reduce  the  damages  by  proof 
of  payment,  the  insolvency  of  the  maker,  or  any  fact  tend 
ing  to  invalidate  the  security.  23  Cal.  179. 


CHAPTER    X. 

CONTRACTS  OF  CORPORATIONS. 

SECTION  1.  A  corporation  is  an  artificial  person,  (5  Cal. 
307),  and  shall  have  such  powers,  rights  and  privileges,  as 
may  be  conferred  on  it  by  statute.  In  this  state  it  shall 
have  the  right : 


142  JUSTICES'  TREATISE. 

1st.  Of  succession  by  its  corporate  name  for  the  period 
limited,  and  when  no  period  is  limited,  perpetual. 

2d.  To  sue  and  be  sued  in  any  court. 

3d.  To  make  and  use  a  common  .seal,  and  alter  the  same 
at  pleasure. 

4th.  To  hold,  purchase  and  convey,  such  real  and  per 
sonal  estate,  as  the  purposes  of  the  corporation  shall  re 
quire,  not  exceeding  the  amount  limited  by  law. 

5th.  To  appoint  such  subordinate  officers  and  agents  as 
the  business  of  the  corporation  shall  require,  and  to  allow 
them  a  suitable  compensation. 

6th.  To  make  by-laws  not  inconsistent  with  any  existing 
law,  for  the  management  of  its  property,  the  regulation  of 
its  affairs  and  for  the  transfer  of  its  stock.  Gen.  Laivs, 
746. 

SEC.  2.  The  word  "person,"  in  its  legal  signification,  is 
a  generic  term,  and  was  intended  to  include  artificial  as  well 
as  natural  persons.  4  Cal.  306. 

SEC.  3.  The  supervisors  of  a  county  are  a  quasi  political 
corporation.  6  Cal.  681. 

SEC.  4.  The  power  to  sue  is  an  inseparable  incident  to 
a  sole  corporation.  1  Cal.  94. 

SEC.  5.  A  corporation  can  only  act  in  the  manner  pre 
scribed  by  law.  7  Cal.  375. 

SEC.  6.  Corporations  have  no  power  except  such  as  are 
specifically  granted,  and  must  be  held  strictly  within  the 
limits  of  their  granted  powers.  5  Cal.  242. 

SEC.  7.  Corporations  must  pursue  strictly  the  authority 
conferred  by  their  charters,  and  can  exercise  no  powers, 
unless  conferred,  or  necessary  to  the  complete  execution  of 
such  powers.  4  Cal.  9,  10. 

SEC.  8.  When  a  corporation  relies  upon  a  grant  of  power 
from  the  legislature  for  authority  to  do  an  act,  it  is  as 
much  restricted  to  the  mode  prescribed  by  the  statute  for 
its  exercise  as  to  the  thing  allowed  to  be  done.  If  the 
charter  confers  upon  the  corporation  a  given  power,  and  at 
the  same  time  prescribes  the  mode  of  its  exercise,  the  pro 
visions  must  be  held  as  dependent,  and  must  be  construed 
accordingly.  7  Cal.  375. 

SEC.  9.     Stockholders  continue  liable  for  "  all  debts  con- 


CONTRACTS  OF  COEPOEATIONS.  143 

tracted  during  the  time  that  they  were  stockholders."  6 
Col.  81. 

SEC.  10.  Corporations,  like  individuals,  have  the  power 
to  contract,  but  their  contracts  must,  in  general,  Be  under 
their  corporate  seal,  and  such  seal  must  be  affixed  with  in 
tent  to  render  the  instrument  effectual,  although  no  formal 
delivery  thereof  is  necessary.  5  East,  239. 

SEC.  11.  For  general  purposes,  not  affecting  the  interest 
or  title  of  the  corporation,  a  corporation  may  act  through 
the  medium  of  an  agent,  although  he  possesses  no  authority 
under  seal.  2  Camp.  96. 

SEC.  12.  It  is  said,  by  Chancellor  Kent:  "That  it  is  a 
doctrine  generally  established  in  the  courts  of  the  several 
states,  with  great  clearness  and  solidity  of  argument,  that 
corporations  cannot  be  bound  by  contracts  made  by  them 
selves  or  their  agents,  though  not  under  seal,  and  also  on 
implied  contracts,  to  be  deduced  by  inference  from  corpo 
rate  acts,  without  either  a  note,  or  deed,  or  writing."  See 
the  numerous  cases  cited  in  support  of  this  doctrine .  1 
Pick.  297  ;  7  Greenl  178. 

SEC.  13.  In  this  state,  each  member  of  an  incorporated 
company  is  answerable,  personally,  for  his  proportion  of  the 
debts  and  liabilities  of  the  company.  14  Cal.  265. 

Each  corporator  is  a  principal  debtor,  and  not  a  mere 
surety  for  the  corporation,  and,  in  relation  to  the  creditors 
of  the  corporation,  stands  on  the  same  footing  as  if  it  were 
an  ordinary  partnership.  14  Cal.  265. 

SEC.  14.  Section  seventeen  of  the  corporation  act  of  1853, 
was  intended  to  apply  only  to  the  trustee  of  an  express 
trust.  15  Cal.  320. 

SEC.  15.  The  third  section  of  the  act  of  1850,  concerning 
corporations,  prohibits  them  from  issuing  bills,  notes,  or 
other  evidences  of  debt,  upon  loans,  or  for  circulation  as 
money.  The  act  contemplates  that  corporations  will  incur 
debt,  and  limits  their  power  to  incur  debts  to  the  amount  of 
the  capital  stock  paid  in  :  Held,  that  corporations  are  not 
prohibited  from  borrowing  money  and  issuing  the  usual 
evidence  of  debt  therefor.  5  Cal.  258. 

SEC.  16.  Section  one  hundred  and  twenty-two  of  the  act 
provides,  as  we  have  seen,  for  the  filing  of  a  certificate  with 


144  JUSTICES'  TREATISE. 

the  clerk,  and  a  duplicate  with  the  secretary  of  state  :  but 
section  one  hundred  and  twenty-three  declares  that  when 
the  certificate  shall  be  filed,  the  persons  executing  the 
same  and  their  successors,  shall  be  a  body  politic  and  cor 
porate.  The  intention  of  the  legislature  could  not  have 
been  more  clearly  expressed.  So  far  as  individuals  are 
concerned,  it  was  intended  that  the  corporation  should 
acquire  a  valid  legal  existence  upon  the  filing  of  the  certifi 
cate.  The  filing  of  the  duplicate  is  exclusively  a  matter 
between  the  corporation  and  the  state.  The  rights  and 
privileges  conferred  by  the  statute  vest  in  the  corporation 
upon  the  filing  of  the  certificate,  and  can  be  divested  only 
by  a  direct  proceeding  for  that  purpose.  If  the  duplicate 
has  not  *been  filed,  the  assumption  of  corporate  powers 
amounts  simply  to  a  usurpation  of  the  sovereign  rights  of 
the  state,  the  remedy  for  which  rests  with  the  state  alone. 
14  Cal.  427. 


CHAPTER   XI. 

DEBT,  CONTBACTS  OF. 

SECTION  1.  Debt  comprehends  all  agreements  either  ex 
press  or  implied,  by  which  one  party  becomes  bound  to 
pay  to  another  a  sum  of  money,  either  fixed  by  the  terms 
of  the  contract,  or  capable  of  being  determined  by  other 
evidence.  In  all  such  cases  an  action  can  be  brought  to 
recover  the  amount  actually  due  to  plaintiff.  Cow.  Treatise, 
Sec.  108. 

SEC.  2.  In  all  contracts,  the  evidence  of  which  is  in  writ 
ing,  the  obligations  of  the  parties  are  to  be  determined  by  a 
proper  interpretation  of  the  writing.  The  language  used  is 
always  supposed  to  convey  the  meaning  intended,  and  is  the 
best  evidence  of  that  intention.  The  following  are  some  of 
the  rules  of  interpretation  : 

1st.  The  intention  of  the  parties  where  it  is  manifest 
from  the  instrument  shall  prevail,  unless  it  is  contrary  to 
some  rule  of  law. 

2d.  When  the  intention  is  manifest,  mere  inaccuracies  in 


DEBT,    CONTKACTS  OF.  145 

language,  or  mistake,  will  be  disregarded.     These  defects 
will  be  supplied  by  the  court. 

3d.  When,  by  the  language  of  the  contract,  persons  or 
property  are  described  or  referred  to  by  description,  which 
may  be  applied  to  other  persons  or  property,  other  evidence 
can  be  received  to  render  certain  that  which  was  intended. 
As,  when  A  sells  to  B  the  wheat  raised  on  his  Salem  farm, 
and  it  afterwards  appears  that  A  had  two  farms  by  thai? 
name,  extrinsic  evidence  may  be  admitted  to  show  which 
farm  by  that  name  was  meant. 

4th.  Words  employed  in  a  written  instrument  are  to  be 
understood  in  their  ordinary  sense.  If  they  are  technical 
terms,  pertaining  to  a  particular  trade  or  profession,  ex 
trinsic  evidence  may  be  received  to  explain  those  terms. 
1  Story  on  Cont.  Sec.  233. 

SEC.  3.  When  the  obligations  of  the  parties  are  deter 
mined  by  the  interpretation  of  the  record  or  instrument, 
the  failure  of  one  party  to  perform  them,  for  which  a  suit 
is  brought  to  recover  damages  resulting  from  such  failure, 
unless  the  contract  particularly  provides  for  the  amount  of 
damages  to  be  given  the  injured  party,  they  must  be  ascer 
tained  from  evidence,  to  be  admitted,  subject  to  certain 
rules,  which  will  hereafter  be  noticed.  Cow.  Treatise,  Sec. 
110. 

SEC.  4.  Contracts  upon  which  actions  can  be  brought 
for  the  recovery  of  money  only,  in  addition  to  those  men 
tioned  in  the  preceding  sections,  include  every  description 
of  agreements,  by  which  one  party  has  undertaken  to  do 
or  not  to  do  a  particular  thing,  or  that  another  shall  do  or 
not  do  a  particular  thing,  or  that  a  particular  fact  is  or  is 
not  so.  Cow.  Treatise,  Sec.  111. 

SEC.  5.  A  slight  consideration  is  sufficient  to  sustain  a 
contract,  so  it  be  a  benefit  to  the  defendant  or  a  loss  to 
the  plaintiff,  it  is  sufficient.  3  Johns.  104. 

SEC.  6.  Mutual  promises  made  at  the  same  time  furnish 
good  considerations  for  each  other,  unless  the  promise  on 
one  side  is  void — as  a  promise  to  do  an  unlawful  act.  But 
if  the  promise  of  one  party  be  voidable  only  as  the  promise 
of  an  infant  to  marry,  the  consideration  is  sufficient.  The 
infant  may  maintain  an  action  for  its  breach,  although  his 
19 


146  JUSTICES'  TREATISE. 

infancy  would  be  a  defense  in  an  action  by  the  adult. 
1  Story  on  Cont.  139. 

SEC.  7.  A  moral  obligation,  not  founded  on  a  previous 
legal  or  equitable  obligation,  is  not  sufficient  consideration; 
as,  where  I  have  a  judgment  against  one,  and  he  delivers  to 
me  a  pledge  to  secure  it,  and  I  sell  the  pledge  upon  execu 
tion,  promising  to  pay  what  it  sells  for  beyond  satisfying 
the  judgment,  the  consideration  is  a  good  one  for  the  prom 
ise.  Cow.  T)*eatise,  Sec.  115. 

SEC.  8.  A  command  or  request  made  by  one  to  another 
to  do  an  act  which  is  a  trespass,  is  a  sufficient  consideration 
for  an  express  promise  to  indemnify,  whether  made  before 
or  after  the  commission  of  the  act.  But  the  law  will  not 
imply  a  promise  in  such  cases.  2  J£enfs  Com.  465. 

SEC.  9.  A  promise  by  the  holder  of  a  note  to  extend  the 
time  of  payment,  if  without  some  new  consideration,  is 
void.  But  if  the  maker  furnished  additional  security  for 
the  debt,  or  if  he  took  up  an  old  note  and  gave  a  new  one 
in  consideration  of  said  extension  time,  it  is  sufficient.  1 
Wend.  317. 

SEC.  10.  A  promise  to  pay  damages  for  the  detention  of 
a  sum  of  money  beyond  the  sum  detained,  is  void.  2  Hall's 
Hep.  185. 

SEC.  11.  Where  one  buys  goods  for  money,  which  is  not 
paid,  and  neither  earnest  money  given  nor  a  delivery,  no 
action  lies  for  the  money  or  goods.  So,  where  I  give  you 
the  refusal  of  goods  for  a  certain  price  for  a  certain  time, 
and  you  give  me  notice  within  the  time  that  you  will  take 
them,  this  does  not  bind  me,  for  you  not  being  bound  to 
accept  the  offer,  there  was  no  consideration  for  my  promise. 
So,  where  one  agrees  gratuitously  to  build  a  house  for 
another,  and  neglects  it,  no  action  lies,  even  though  special 
damage  ensued;  it  would,  however,  be  otherwise  if  he  had 
entered  upon  the  work.  4  Johns.  84. 

SEC.  12.  A  promise  to  permit  one  to  pass  over  my  land 
is  a  mere  license,  and  will  not  prevent  my  withdrawing  the 
license  and  fencing  up  the  passage.  10  Johns.  246. 

SEC.  13.  Where  the  consideration  be  wholly  executed 
before  the  promise  is  made,  it  is  not  sufficient,  unless  it 
arose  at  the  request  of  the  party  making  it.  And  the  request 


DEBT,    CONTRACTS   OF.  147 

must  have  been  expressly  made  or  be  necessarily  implied 
from  the  circumstances.  For  the  rule  is,  that  I  shall  hot, 
without  a  request,  do  you  a  kindness  and  afterwards  charge 
you  for  it,  even  though  you  then  promised  to  pay  for  it. 
As  if  I,  without  your  knowledge,  save  your  property  from 
fire,  and  you  afterwards  promise  to  pay  me  for  my  trouble. 
But  where  the  circumstances  under  which  the  service  is 
performed  show  a  strong  moral  obligation  to  make  the  re 
quest,  a  request  is  implied.  As  where  one,  without  cause, 
expels  his  wife  and  child  from  his  house,  and  another  fur 
nishes  her  necessaries  ;  where  one  pays  another's  debts  and 
he  promises  to  pay  him  ;  where,  during  the  absence  of  A, 
his  wife  or  child  'dies,  and  B  buries  her,  and  A  promises  to 
pay  for  the  services  a  certain  sum.  In  these  and  similar 
cases,  the  jury  may  infer  a  request,  in  order  to  support  an 
express  promise,  and  where  the  services  which  form  the 
consideration  was  performed  at  the  request  of  the  party, 
the  circumstance  that  the  promise  was  subsequently  made 
does  not  affect  it.  As,  where  I  perform  a  service  at  your 
request,  and  you  afterwards  promise  to  pay  me  one  hundred 
dollars  for  it,  the  promise  is  good  and  you  cannot  show  that 
the  amount  to  be  paid  was  more  than  the  service  was  worth, 
without  showing  that  I  used  some  fraudulent  means  to  ex 
tort  it.  Eol.  Abr.  11. 

SEC.  14.  A  consideration  partly  executed  at  the  time  of 
the  promise  and  completed  afterwards,  will  not  support  it, 
though  it  be  begun  -and  completed  without  the  request  of 
the  party  promising.  Such  are  called  continuing  considera 
tions.  As,  where  one  married  the  maid  who  lived  in  the 
plaintiff's  house,  and  about  the  middle  of  the  year  promised 
him  that  if  she  remained  for  the  year  he  would  pay  for  her 
board  for  the  whole  year  past,  as  well  as  future.  Bac.  Ab. 
Assumpsit  D. 

SEC.  15.  The  consideration  may  come  from  a  third  party. 
As  where,  in  consideration  that  you  will  contract  with  A  to 
deliver  him  a  horse,  I  pay  you  the  price.  And  where  one 
person  makes  a  promise  to  another  for  the  benefit  of  a  third, 
the  third  person  may  maintain  an  action  upon  it.  You  owe 
me,  and  sell  an  article  to  A,  he  promising  you  that  he  will 
pay  me  the  price  ;  here  I  may  recover  against  A  up»n  the 


148  JUSTICES'  TREATISE. 

promise,  for  although  the  promise  was  made  to  you  it  was 
for  my  benefit,  and  the  consideration  was  a  good  one.  Cow. 
Treatise,  Sec.  125. 


CHAPTER    XII. 

CONTEACTS  OF  FBEIGHT. 

SECTION  1.  Delivery  of  goods  by  the  master  and  pay 
ment  of  freight  by  the  owner,  are  concurrent  contracts,  and 
neither  party  is  bound  to  perform  his  part  of  the  shipping 
contract,  unless  the  other  is  ready  to  perform  the  correla 
tive  act.  Prothingham  vs.  Jenkins,  1  Cal.  42. 

SEC.  2.  Contracts  for  carrying  freight  form  no  exception 
to  the  general  rule  of  law,  that  when  money  is  paid  by  one 
party  in  consideration  of  an  act  to  be  done  by  another,  and 
the  act  is  not  done,  the  money  so  paid  may  be  recovered 
back.  6  Cal.  29. 

SEC.  3.  If  freight  is  paid  in  advance  on  a  charter  party, 
and  the  voyage  is  not  accomplished  by  reason  of  the  loss  of 
the  vessel  at  sea,  the  freight  advanced  may  be  recovered. 
6  Cal.  29. 

SEC.  4.  The  general  rule  is,  that  freight  is  lost  unless 
the  goods  are  carried  to  the  port  of  destination.  The  rule 
goes  further,  and  obliges  the  master,  in  case  of  shipwreck, 
to  restore  to  the  shipper  the  freight  previously  advanced. 
Eeina  vs.  Cross,  6  Cal.  31. 

Freight  is  a  compensation  for  the  carriage  of  goods,  and 
if  paid  in  advance,  and  the  goods  be  not  carried  by  reason 
of  any  event  not  imputable  to  the  shipper,  it  then  forms  the 
ordinary  case  of  money  paid  upon  a  consideration  which 
happens  to  fail,  and  is  to  be  repaid,  unless  there  be  a  spe 
cial  agreement  to  the  contrary.  6  Cal.  31. 

SEC.  5.  In  an  action  for  freight  due  on  a  charter  party, 
brought  in  the  courts  of  this  state,  it  is  not  a  sufficient  an 
swer  to  set  up  that  the  vessel  has  been  libeled  for  the  non 
delivery  of  freight,  in  the  district  court  of  the  United  States, 
both  actions  may  be  proved  at  the  same  time  without  the 
fear  or  danger  of  any  collision  or  clashing  of  jurisdiction. 
Eussell  vs.  Alveres,  5  Cal.  48,  49. 


HUSBAND  AND  WIFE.  149 

SEC.  6.  Advance  freight  can  be  recovered  back  by  the 
charterer,  in  case  of  the  loss  of  the  ship  or  non-performance 
of  the  voyage  whether  by  the  fault  of  the  master  or  not. 
Lawson  vs.  Worms,  6  Cal.  365. 

SEC.  7.  Shipping  Masters. — A,  a  merchant  in  Boston,  ship 
ped,  by  one  bill  of  lading,  certain  merchandise  to  San  Fran 
cisco,  consigned  to  B,  who  was  the  mere  agent  of  A,  the 
owner.  On  arrival,  part  of  the  merchandise  was  delivered, 
and  part  of  the  freight  paid  ;  but  the  agent  being  unable  to 
raise  funds  to  pay  the  whole  freight,  offered  to  give  good 
security  for  the  payment  thereof,  in  case  the  master  would 
make  the  delivery,  which  offer  the  master  refused  to  accept : 
Hdct,  that  the  master  had  a  lien  on  all  the  goods  mentioned 
in  the  same  bill  of  lading  for  the  entire  freight;  that  part 
delivery  was  no  waiver  of  his  lien  on  the  remainder  of  the 
goods  for  the  unpaid  balance  of  freight,  and  that  an  offer 
to  give  good  security  for  payment  of  the  freight  could  not 
divest  the  master's  lien,  nor  was  such  offer  sufficient  to 
compel  the  master  to  deliver  the  remainder  of  the  goods. 
Frothingham  vs.  Jenkins,  1  Cal.  42. 

SEC.  8.  Cargo  for  Freight. — Where  it  appears  clearly  from 
a  charter  party,  that  the  intention  of  the  owner  of  the  ship 
and  the  charterer  is,  that  the  former  shall  have  no  lien  on 
the  freight,  but  shall  give  a  personal  credit  to  the  charterer, 
the  former  loses  his  right  of  lien  on  the  cargo,  and  can 
look  only  to  the  personal  responsibility  of  the  charterer  for 
the  payment  of  the  hire  of  the  vessel.  Brown  vs.  Howard 
&  Howard,  I  Cal.  423. 


CHAPTER    XIII. 

HUSBAND    AND    WIFE. 

SECTION  1.  Marriage  is  considered,  in  law,  as  a  civil 
contract,  to  which  the  consent  of  the  parties  is  essential. 
Gen.  Laios,  4460. 

SEC.  2.  Marriage  is  regarded  as  a  civil  contract,  and  no 
form  is  necessary  for  its  solemnization.  If  it  takes  place 
between  parties  able  to  contract,  an  open  avowal  of  the  in- 


150  JUSTICES'  TREATISE. 

tention  and  an  assumption -of  the  relative  duties  which  it 
imposes  on  each  other,  is  sufficient  to  render  it  'valid  and 
binding.  Graham  vs.  Bennett,  2  Cal.  506. 

SEC.  3.  Living  together  as  man  and  wife  is  not  marriage, 
nor  is  an  agreement  so  to  live  a  contract  of  marriage. 
These  facts  are  only  prima  facie  evidence  of  marriage. 
Litters  vs.  Cady,  10  Cal.  537. 

SEC.  4.  All  marriages  between  parents  and  children,  in 
cluding  grandparents  and  grandchildren  of  every  degree; 
between  brothers  and  sisters  of  the  one-half  as  well  as  the 
whole  blood,  and  between  uncles  and  nieces,  aunts  and 
nephews,  are  declared  to  be  incestuous,  and  absolutely 
void.  This  section  shall  extend  to  illegitimate  as  well  as  to 
legitimate  children  and  relations.  All  marriages  of  white 
persons  with  negroes  or  mulattoes,  are  declared  to  be  illegal 
and  void.  Whoever  shall  contract  marriage,  in  fact,  con 
trary  to  the  prohibitions  in  this  section,  and  whoever  shall 
solemnize  any  such  marriage,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction,  shall  be  punished  by 
fine  or  imprisonment,  or  both,  at  the  discretion  of  the  jury 
which  shall  try  the  cause;  or,  if  the  conviction  be  by  con 
fession,  at  the  discretion  of  the  court;  the  fine  to  be  not 
less  than  one  hundred  nor  more  than  ten  thousand  dollars, 
and  the  imprisonment  to  be  not  less  than  three  months  nor 
more  than  ten  years.  All  marriages  contracted  without 
this  state,  which  would  be  valid  by  the  laws  of  the  country 
in  which  the  same  were  contracted,  shall  be  valid  in  all 
courts  and  places  within  this  state.  Gen.  Laws,  4461-4464. 

SEC.  5.  Every  judge  and  justice  of  the  peace,  and  every 
clergyman  of  any  denomination,  or  licensed  preacher  of  the 
gospel,  may  perform  the  ceremony  of  marriage  in  this  state. 
Gen.  Laios,  4465.  . 

SEC.  6.  No  person  shall  be  joined  in  marriage  unless  such 
person  shall  have  first  obtained  a  license  therefor  from  the 
clerk  of  the  county  court  of  the  county  in  which  the  marriage 
is  to  be  celebrated,  which  license  shall  authorize  any  judge, 
justice  of  the  peace,  clergyman  or  preacher  of  the  gospel, 
to  celebrate  and  certify  such  marriage  ;  but  no  such  license 
shall  be  granted  for  the  marriage  of  any  male  under  twenty- 
one  years  of  age,  or  for  any  female  under  the  age  of  eighteen 


HUSBAND  AND  WIFE.  151 

years,  without  the  consent  of  his  or  her  father,  or  if  he  be 
dead  or  incapable,  of  his  or  her  mother  or  guardian,  to  be 
noted  in  such  license,  or  unless  the  party  or  parties  under 
said  ages,  respectively,  shall  have  been  previously  married ; 
and  if  any  clerk  shall  issue  a  license  for  the  marriage  of 
any  such  minor,  without  consent  as  aforesaid,  he  shall 
forfeit  and  pay  a  sum  not  less  than  one  hundred  dollars, 
nor  more  than  one  thousand  dollars,  to  the  use  of  such 
father,  mother  or  guardian,  to  be  sued  for  and  recovered  in 
any  court  having  cognizance  thereof ;  and  for  the  purpose  of 
ascertaining  the  age  of  the  parties,  such  clerk  is  hereby 
authorized  to  examine  either  party  or  other  witnesses,  on 
oath ;  and  the  clerk  shall  be  entitled  to  receive  for  such 
certificate  the  sum  of  two  dollars,  one-half  of  which  he  shall 
pay -to  the  recorder  of 'the  county  for  recording  the  license 
and  certificate,  except  in  counties  where  the  clerk  and  re 
corder  receive  salaries,  then  he  shall  pay  the  two  dollars 
into  the  county  treasury  :  provided,  unmarried  persons  living 
and  cohabiting  together  as  husband  and  wife,  may  be  mar 
ried  without  license  or  public  record  thereof  :  provided,  the 
clergyman  performing  the  ceremony  shall  make  a  record 
thereof  in  the  church  register.  Gen.  Laws,  4466. 

SEC.  7.  Any  judge,  justice  of  the  peace,  clergyman,  or 
preacher  of  the  gospel,  who  shall  celebrate  any  marriage, 
shall  make  a  certificate  of  such  marriage,  and  file  the  same, 
together  with  the  license  therefor,  within  thirty  days  there 
after,  in  the  office  of  the  county  recorder  in  and  for  the 
county  in  which  said  marriage  was  celebrated ;  and  any  per 
son  neglecting  or  refusing  to  make  such  return  within  the 
above  required  time,  shall  forfeit  for  each  and  every  such 
offense,  a  sum  not  exceeding  fifty  dollars,  to  be  recovered 
on  indictment,  and  paid  into  the  common  school  fund  of 
said  county  ;  and  if  any  judge,  justice  of  the  peace,  clergy 
man  or  preacher  of  the  gospel,  shall  solemnize  and  join  in 
marriage  any  couple  without  a  license,  as  aforesaid,  shall, 
for  every  such  offense,  forfeit  and  pay  a  sum  not  exceeding 
five  hundred  dollars,  to  be  recovered  on  indictment,  and  to 
be  paid  into  the  common  school  fund  of  the  county.  Gen. 
Laws,  4467. 

SEC.  8.     The  recorder  shall  record  all  such  certificates  of 


152  JUSTICES'  TREATISE. 

marriage,  together  with  the  license,  in  a  book  to  be  kept 
for  that  purpose,  within  one  month  after  receiving  the  same, 
and  he  shall  be  allowed  to  receive  for  each  such  record,  to 
include  both  certificate  and  license,  the  sum  of  one  dollar. 
The  books  of  marriages  to  be  kept  by  the  respective  re 
corders,  and  copies  of  entries  therein,  certified  by  him 
under  his  official  seal,  shall  be  evidence  in  all  courts.  If 
any  person  authorized  to  solemnize  any  marriage,  shall 
willfully  make  a  false  return  of  any  marriage  or  pretended 
marriage,  to  the  recorder,  or  if  the  recorder  shall  willfully 
make  a  false  record  of  any  return  of  a  marriage,  he  shall 
be  deemed  guilty  of  a  misdemeanor,  and  shall  be  punished 
by  fine  not  less  than  one  hundred  nor  more  than  ten  thou 
sand  dollars,  and  by  imprisonment  of  not  less  than  three 
months  nor  more  than  ten  years.  Gen.  Laws,  4468— i470. 

SEC.  9.  A  married  woman  follows  the  domicile  of  her 
husband,  because,  being  under  his  authority,  she  has  no 
right  to  choose  one  for  herself.  Kasliaiv  vs.  Kaslmiv  et  aL, 
3  Cal.  322. 

SEC.  10.  The  desertion  of  the  husband  entitles  the  wife 
to  her  own  domicile.  Mq/at  vs.  Mq/at,  5  Cal.  281. 

SEC.  11.  AH  property,  both  real  and  personal  of  the 
wife,  owned  by  her  before  marriage,  and  that  acquired 
afterwards  by  gift,  bequest,  devise  or  descent,  shall  be  her 
separate  property;  and  all  property,  both  real  and  personal, 
owned  by  the  husband  before  marriage,  and  that  acquired 
by  him  afterwards,  by  gift,  bequest,  devise,  or  descent, 
shall  be  his  separate  property.  All  property  acquired  after 
the  marriage  by  either  husband  or  wife,  except  such  as  may 
be  acquired  by  gift,  bequest,  devise  or  descent,  shall  be 
common  property.  Gen.  Laws,  3563,  3564. 

SEC.  12.  The  presumption  attending  the  acquisition  of 
property  during  marriage,  by  either  husband  or  wife,  is 
that  the  property  belongs  to  the  community.  Burton  vs. 
Lies  et  aL,  21  Cal.  87. 

SEC.  13.  A  full  and  complete  inventory  of  the  separate 
property  of  the  wife  shall  be  made  out  and  signed  by  the 
wife,  acknowledged  or  proved  in  the  manner  required  by 
law  for  the  acknowledgment  or  proof  of  a  conveyance  of 
land,  and  recorded  in  the  office  of  the  recorder  of  the 


HUSBAND  AXD   WIFE.  153 

county  in  which  the  parties  reside.  If  there  be  included 
in  the  inventory  any  real  estate  lying  in  other  counties,  the 
inventory  shall  also  be  recorded  in  such  counties.  The 
filing  of  the  inventory  in  the  recorder's  office  shall  be  notice 
of  the  title  of  the  wife,  and  all  property  belonging  to  her 
included  in  the  inventory,  shall  be  exempt  from  seizure  or 
execution  for  the  debts  of  her  husband.  Gen.  Laws, 
3565-3567. 

SEC.  14.  The  capacity  of  the  wife  to  hold  separate  prop 
erty  is  created  by  the  constitution,  and  her  title  to  her 
separate  estate  depends  alone  upon  the  mode  of  its  acquisi 
tion,  and  vests  in  her  before  the  inventory  can  be  filed. 
The  legislature  intended  to  make  the  filing  of  the  inventory 
of  the  wife's  separate  property  notice,  not  of  the  wife's  in 
tention  to  continue  to  assert  her  right,  but  of  the  claim 
itself;  in  other  words,  it  was  intended  to  give  notice  of  what 
property  the  wife  claimed  to  have  owned  before  marriage, 
or  acquired  afterwards,  by  gift,  bequest  or  devise.  Selover 
vs.  American  Russ.  Com.  Company,  7  Cal.  272. 

SEC.  15.  The  husband  shall  have  the  management  and 
control  of  the  separate  property  of  the  wife  during  the  con 
tinuance  of  the  marriage;  but  no  alienation,  sale  or  con- 
-  3yance,  of  the  real  property  of  the  wife,  or  any  part 
thereof,  or  any  right,  title  or  interest,  therein,  and  ho  con 
tract  or  power  of  attorney,  concerning  or  relating  to  the 
same,  and  no  lien  or  incumbrance  created  thereon,  shall  be 
valid  for  any  purpose,  unless  the  same  be  made  by  an  in 
strument  in  writing,  executed  by  the  husband  and  wife,  and 
acknowledged  by  her,  as  provided  for  in  the  acts  concerning 
conveyances,  in  case  of  the  conveyance  of  her  separate  real 
estate.  The  personal  property  of  the  wife  shall  not  be  sold, 
assigned  or  transferred,  unless  both  husband  and  wife  join 
in  the  sale,  assignment  or  transfer,  thereof,  except  property 
which  she  is  or  may  be  authorized  by  law  to  sell,  assign  or 
transfer,  as  afemme-sole.  Gen.  Laics,  3568. 

SEC.  16.  The  statute,  it  is  true,  provides  that  a  married 
woman  cannot  make  any  sale  or  other  alienation  of  her 
separate  property,  except  by  an  instrument  in  writing. 
(Act  defining  the  rights  of  husband  and  wife,  Sec.  6.)  But 
in  this  provision  the  statute  has  reference  to  property  other 
20 


154  JUSTICES'  TREATISE. 

than  money.  •  It  does  not  contemplate  that  every  time  a  mar 
ried  woman  pays  her  money  for  articles  purchased,  she  must 
execute  an  instrument  in  writing  in  order  to  make  a  valid 
transfer  of  the  money.  In  the  present  case,  the  money  was 
in  the  hands  of  the  defendant,  and  the  plaintiff  could  as 
well  consent  by  parol  to  its  retention  by  him,  as  she  could 
have  paid  it  to  him  without  writing,  if  it  had  been  at  the 
time  in  her  possession.  Coles  vs.  Soulsby,  21  Cal.  51. 

SEC.  17.  When  a  husband  abandons  his  wife,  leaving 
her  to  her  labor  for  a  support,  and  she  obtains  such  articles 
as  those  sued  for  here  [furniture]  by  her  own  contracts  and 
earnings,  we  think  the  husband  must  be  held  to  assent  to 
her  disposition  of  them,  if  her  necessities  or  convenience 
require  it.  He  permits  her  to  act  as  femme-sole  in  ac 
quiring  such  property,  and  he  ought  not  to  dispute  her  acts 
in  that  character  when  she  disposes  of  it.  The  fair  pre 
sumption  is  that  he  consents  to  her  acting  in  this  way — as 
otherwise  she  would  not  be  enabled  to  support  herself  at 
all.  Lawrence  vs.  Spear,  17  Cal.  423,  424. 

SEC.  18.  A  married  woman  may,  no  doubt,  execute  a 
power  of  authority  without  her  husband.  But  if  she  be  a 
trustee  for  infants,  she  cannot  dispose  of  the  trust  property^ 
except  by  the  order  of  the  proper  court.  The  infants  can 
not  give  a  binding  consent,  and  the  court  is  bound  to  pro 
tect  their  rights.  Kendall  vs.  Miller,  9  Cal.  592,  593. 

SEC.  19.  Under  our  statute,  the  sale  of  the  separate 
property  of  the  wife,  whether  real  or  personal,  must  be  in 
writing,  signed  and  acknowledged  in  the  manner  pointed 
out  by  the  statute,  or  it  is  void.  Selover  vs.  Am.  Buss.  C.  Co., 
7  Cal.  247.  Where  a  femme-sole  becomes  the  owner  of  shares 
of  stock  in  a  company,  and  afterwards  marries,  and  after 
marriage  the  husband  and  wife  execute  an  indorsement  on 
the  certificate  of  stock,  purporting  to  sell  the  same  to  A, 
without  any  privy  examination  of  the  wife,  and  there  being 
at  the  time  no  inventory  of  the  separate  property  of  the  wife 
on  record :  Held,  that  such  sale  was  void,  as  against  a  sub 
sequent  purchaser,  under  an  instrument  duly  signed  and 
acknowledged.  Selover  vs.  American  Russ.  Com.  Company,  7 
Cal.  266. 

SEC.  20.     The  doctrine  of  estoppel  in  pais  has  no  applica- 


HUSBAND  AND  WIFE.  155 

tion  to  the  estates  of  married  women  ;  for  the  act  of  1850  is 
enabling,  the  estate  vesting  only  after  compliance  with  the 
mode  of  conveyance  prescribed  by  the  statute.  Where  the 
wife  stands  by  and  sees  personal  property  sold  by  the  husband 
as  his  own,  she  is  not  estopped  from  afterwards  claiming  it. 
The  law  has  thrown  certain  guards  around  a  married  woman 
to  protect  her  from  the  influence  of  her  husband-  It  has 
provided  a  mode  by  which  alone  she  can  be  deprived  of  her 
real  estate,  and  to  use  no  stronger  language,  it  is  certainly 
very  doubtful  whether  she  can  be  deprived  of  her  separate 
personal  estate  in  any  other  mode  than  the  one  prescribed 
by  the  instrument  of  settlement.  The  mere  silence  of  the 
wrife  as  to  her  title,  and  her  failure  to  obtrude  her  rights 
upon  the  notice  of  others,  cannot  divest  her  of  her  property. 
The  general  rule  is,  that  if  the  conveyance  of  the  femme-co- 
vert  be  not  executed  according  to  the  forms  prescribed  by 
the  statute,  it  is  not  valid.  Morrison  vs.  Wilson  and  Wife, 
13  Cal.  497,  498. 

SEC.  21.  The  doctrine  that  fraud  vitiates  all  contracts, 
even  those  made  by  infants  orfemmes,  is,  in  cases  of  married 
women,  under  statutes  like  ours,  limited  to  this  :  that  a 
contract  so  infected  cannot  be  enforced  ;  but  not  that  a 
fraudulent  representation  will  divest  a  femme's  title  in  the 
face  of  a  statute  declaring  a  different  and  exclusive  mode  ®f 
divesture.  Morrison  vs.  Wilson  and  Wife,  13  Cal.  498. 

SEC.  22.  When  any  sale  shall  be  made  by  the  wife  of  any 
of  her  separate  property,  for  the  benefit  of  her  husband,  or 
when  he  shall  have  used  the  proceeds  of  such  sale  with  her 
consent  in  writing,  it  shall  be  deemed  a  gift,  and  neither 
she  nor  those  claiming  under  her  shall  have  any  right  to 
recover  the  same.  If  the  wife  has  just  cause  to  apprehend 
that  her  husband  has  mismanaged  or  wasted,  or  will  misman 
age  or  waste,  her  separate  property,  she,  or  any  other  person 
in  her  behalf,  may  apply  to  the  district  court  for  the  appoint 
ment  of  a  trustee,  to  take  charge  of  and  manage  her  sepa 
rate  estate ;  such  trustee  may,  for  good  cause  shown,  be  from 
time  to  time  removed  by  the  court,  and  another  appointed  in 
his  place.  Before  entering  upon  the  discharge  of  his  trust, 
he  shall  execute  a  bond,  with  sufficient  surety  or  sureties,  to 
be  approved  by  the  court,  for  the  proper  performance  of  his 


156  JUSTICES'  TREATISE. 

duties.  In  case  of  the  appointment  of  a  trustee  for  the  wife, 
he  shall  account  for  and. pay  over  to  the  husband  and  wife, 
or  either  of  them,  the  income  and  profits  of  the  wife's  estate, 
in  such  manner  and  proportion  as  the  court  may  direct. 
The  husband  shall  have  the  entire  management  and  control 
of  the  common  property,  with  the  like  absolute  power  of 
disposition,  as  of  his  own  separate  estate  ;  and  the  rents  and 
profits  of  the  separate  estate  of  either  husband  or  wife  shall 
be  deemed  common  property  ;  unless  in  the  case  of  the  sep 
arate  property  of  the  wife,  it  shall  be  provided  by  the  terms 
of  the  instrument  whereby  such  property  may  have  been 
bequeathed,  devised  or  given,  to  her,  that  the  rents  and 
profits  thereof  shall  be  applied  to  her  sole  and  separate 
use ;  in  which  case  the  entire  management  and  disposal  of 
the  rents  and  profits  of  such  property  shall  belong  to  the 
wife,  and  shall  not  be  liable  for  the  debts  of  the  husband. 
Gen.  Laws,  3569-3571. 

SEC.  23.  The  husband,  by  the  express  language  of  the 
statute,  is  entitled  to  the  management  and  control  of  the 
separate  property  of  the  wife  during  the  continuance  of  the 
marriage,  and,  of  course,  to  its  possession.  If  the  wife  have 
any  just  cause  to  apprehend  that  her  husband  will  misman 
age  or  waste  her  separate  property,  she  has  her  remedy  by 
application  to  the  district  court,  for  the  appointment  of  a 
trustee  to  take  charge  of  and  manage  the  same.  Hahon&  vs. 
Grimshaw,  20  Cal.  176. 

SEC.  24.  No  estate  shall  be  allowed  to  the  husband  as 
tenant,  by  courtesy,  upon  the  decease  of  his  wife,  nor  any 
estate  in  dower  be  allotted  to  the  wife  upon  the  decease  of 
her  husband.  Upon  the  dissolution  of  the  community  by  the 
death  of  the  wife,  the  entire  common  property  shall,  without 
administration,  go  to  the  surviving  husband.  Upon  the  dis 
solution  of  the  community  by  the  death  of  the  husband,  one- 
half  of  the  common  property  shall  go  to  the  surviving  wife, 
and  the  other  half  shall  be  subject  to  the  testamentary  dispo 
sition  of  the  husband,  and  in  absence  of  such  disposition, 
shall  go  to  his  descendants,  equally,  if  such  descendants 
are  in  the  same  degree  of  kindred  to  the  intestate,  other 
wise,  according  to  the  right  of  representation ;  and  in  the 
absence  of  both  such  disposition  and  such  descendants, 


HUSBAND   AND  WIFE.  157 

shall  be  subject  to  distribution  in  the  same  manner  as  the 
separate  property  of  the  husband  :•  provided,  that  in  case  of 
the  dissolution  of  the  community  by  the  death  of  the  hus 
band,  the  entire  common  property  shall  be  equally  subject 
to  his  debts,  the  family  allowance,  and  the  charges  and 
expense  of  administration.  In  case  of  the  dissolution  of  the 
marriage  by  decree  of  any  court  of  competent  jurisdiction, 
the  common  property  shall  be  equally  divided  between  the 
parties,  and  the  court  granting  the  decree  shall  make  such 
order  for  the  division  of  the  common  property  or  the  sale 
and  equal  distribution  of  the  proceeds  thereof,  as  the  nature 
of  the  case  may  require  :  provided,  that  when  such  decree 
of  divorce  is  rendered  on  the  ground  of  adultery  or  extreme 
cruelty,  the  party  found  guilty  thereof,  shall  only  be  entitled 
to  such  portion  of  the  common  property  as  the  court  grant 
ing  the  decree  may  in  its  discretion,  from  the  facts  of  the 
case,  deem  just  and  allow,  and  such  allowance  shall  be  sub 
ject  to  revision  on  appeal  in  all  respects,  including  the  exer 
cise  of  discretion  by  the  court  below.  The  separate  prop 
erty  of  the  husband  shall  not  be  liable  for  the  debts  of  the 
wife  contracted  before  the  marriage,  but  the  separate  prop 
erty  of  the  wife  shall  be  and  continue  liable  for  all  such 
debts.  Gen.  Laws,  3572-3575. 

SEC.  25.  The  separate  property  of  the  wife  and  the  com 
mon  property  of  both  husbaud  and  wife,  are  equally  liable 
for  the  debts  of  the  wife  contracted  previous  to  her  marriage, 
and  judgments  recovered  for  such  debts  may  be  enforced 
against  either  class  or  both  classes  of  property  indiscrimi 
nately.  Van  Maren  vs.  Johnson,  15  Cal.  312,  313. 

SEC.  26.  In  every  marriage  hereafter  contracted  in  this 
state,  the  rights  of  husband  and  wife  shall  be  governed  by 
this  act,  unless  there  is  a  marriage  contract  containing  stip 
ulations  contrary  thereto.  The  rights  of  husband  and  wife, 
married  in  this  state  prior  to  the  passage  of  this  act,  or 
married  out  of  this  state,  who  shall  reside  and  acquire  prop 
erty  herein,  shall  also  be  determined  by  the  provisions  of 
this  act,  with  respect  to  such  property  as  shall  be  hereafter 
acquired,  unless  so  far  as  such  provisions  may  be  in  conflict 
with  the  stipulations  of  any  marriage  contract.  All  mar 
riage  contracts  shall  be  in  writing,  and  executed  and  ac- 


158  JUSTICES'  TREATISE. 

knowledged  or  proved,  in  like  manner  as  a  conveyance  of 
land  is  required  to  be  executed  and  acknowledged  or  proved. 
When  a  marriage  contract  shall  be  acknowledged  or  proved, 
it  shall  be  recorded  in  the  office  of  the  recorder  of  the  county 
in  which  the  parties  reside,  and  also  in  the  office  of  the  re 
corder  of  every  county  in  which  any  real  estate  may  be  situ 
ated,  which  is  conveyed  or  affected  by  such  marriage  con 
tract.  "When  any  marriage  contract  is  deposited  in  the 
recorder's  office  for  record,  it  shall,  as  to  all  property  affected 
thereby,  in  the  county  where  the  same  is  deposited,  impart 
full  notice  to  all  persons  of  the  contents  thereof.  No  mar 
riage  contract  shall  be  valid,  or  affect  any  property,  except 
between  the  parties  thereto,  until  it  shall  be  deposited  for 
record  with  the  recorder  of  the  county  where  the  parties 
reside,  and  if  it  relates  to  real  estate  in  other  counties,  with 
the  recorder  of  the  county  wherein  such  property  is  situ 
ated.  A  minor,  capable  of  contracting  matrimony,  may 
enter  in  a  marriage  contract,  and  the  same  shall  be  as  valid 
as  if  he  was  of  full  age :  provided,  it  be  assented  to,  in 
writing,  by  the  person  or  persons  whose  consent  is  neces 
sary  to  his  marriage.  A  marriage  contract  may  be  altered 
at  any  time  before  the  celebration  of  the  marriage,  but  not 
afterwards.  The  parties  to  any  marriage  contract  shall 
enter  into  no  agreement,  the  object  of  which  shall  be  to 
alter  the  legal  order  of  descent,  either  with  respect  to  them 
selves  in  what  concerns  the  inheritance  of  their  children  or 
posterity,  or  with  respect  to  their  children  between  them 
selves,  nor  derogate  from  the  rights  given  by  law  to  the 
husband,  as  to  the  head  of  the  family,  or  to  the  surviving 
husband  or  wife,  as  the  guardian  of  their  children.  No 
stipulation  of  any  marriage  contract  shall  be  valid,  which 
shall  derogate  from  the  rights  given  by  law  to  the  husband, 
over  the  persons  of  his  wife  and  children,  or  which  belong 
to  the  husband,  as  the  head  of  the  family,  or  to  the  surviv 
ing  husband  or  wife,  as  the  guardian  of  their  children. 
Gen.  Laws,  3575-3585. 

SEC.  27.  In  the  case  of  Albert  Packard,  Admr  of  Josef  a 
Arellanes,  dec'd  vs.  Antonio  Arellanes,  and  Ortega,  Exr's  of 
Teodora  Arellanes  (17  Cal.  525),  it  was  decided  that  "upon 
the  death  of  the  wife,  the  husband  has  the  right  to  adminis- 


HUSBAND   AND   WIFE.  159 

ter  the  common  property ;  that  he  has  this  right  as  survivor, 
and  as  such  survivor  may  take  possession  of  the  common 
property  and  dispose  of  it,  for  the  purpose  of  settling  the 
community ;  that  the  wife's  interest  is  not  subject  to  ad 
ministration  under  the  laws  for  the  settlement  of  the  estates 
of  deceased  persons  ;  that  the  interest  of  the  wife,  while  liv 
ing,  in  the  common  property  is  a  mere  expectancy,  and  after 
her  death  constitutes  neither  a  legal  nor  an  equitable  estate ; 
and  that  there  is  nothing  for  the  probate  court  to  act  upon. 
SEC.  28.  Married  women  shall  have  the  right  to  carry  on 
and  transact  business  under  their  own  name,  and  on  their 
own  account,  by  complying  with  the  regulations  prescribed 
in  this  act.  Any  married  woman,  residing  within  this  state, 
desirous  to  avail  herself  of  the  benefit  of  this  act,  shall 
give  notice  thereof,  by  advertising  in  some  public  newspa 
per  of  general  circulation  in  the  county  in  which  she  re 
sides,  for  four  successive  weeks  :  provided,  if  any  newspaper 
be  published  in  said  county,  said  publication  shall  be  made 
in  the  paper  so  published  in  said  county.  Such  notice  shall 
set  forth  that  it  is  her  intention  to  make  application  to  the 
district  court  of  said  county,  on  the  day  therein  named,  for 
an  order  of  said  court,  permitting  her  to  carry  on  business  in 
her  own  name  and  on  her  own  account,  and  it  shall  specifi 
cally  set  forth  the  nature  of  the  business  to  be  carried  on. 
On  the  day  named  in  the  notice,  or  at  such  further  time  as 
the  court  may  appoint,  on  filing  proof  of  publication,  the 
court  shall  proceed  to  examine  the  application,  on  oath,  as 
to  the  reasons  which  induce  her  to  make  the  application, 
and  if  it  appear  to  the  court  that  a  proper  case  exists,  it 
shall  make  an  order,  which  shall  be  entered  on  the  minutes, 
that  the  applicant  be  authorized  and  empowered  to  carry  on, 
in  her  own  name,  and  on  her  own  account,  the  business, 
trade,  profession  or  art,  named  in  the  notice  ;  but  the  in 
solvency  of  the  husband,  apart  from  other  causes  tendingi 
to  prevent  his  supporting  his  family,  shall  not  be  deemed], 
to  be  sufficient  cause  for  granting  this  application.  Asy.- 
creditor  of  the  husband  may  oppose  such  application,  ancfi 
may  show  that  it  is  made  for  the  purpose  of  defrauding 
such  creditor,  and  preventing  him  from  collecting  his\4ebt, 
or  will  occasion  such  result ;  and  if  it  shall  so  appeai/to 


1GO  JUSTICES'  TREATISE. 

court,  the  application  shall  be  denied.  On  the  hearing 
witnesses  may  be  examined  on  behalf  of  either  party.  Be 
fore  making  the  order,  the  court  or  judge  shall  administer 
to  the  applicant  the  following  oath  :  "I,  A,  B,  do,  in  pres 
ence  of  Almighty  God,  truly  and  solemnly  swear,  that  this 
application  is  made  in  good  faith,  for  the  purpose  of  ena 
bling  me  to  support  myself  and  iny  children  (if  the  appli 
cant  have  minor  children),  and  not  with  any  view  to  defraud, 
delay  or  hinder,  any  creditor  or  creditors  of  my  husband  ; 
and  that  of  the  moneys  so  to  be  used  in  said  business,  not 
more  than  five  hundred  dollars  has  come,  either  directly  or 
indirectly,  from  my  husband  :  So  help  me,  God."  A  cer 
tified  copy  of  said  order,  with  the  said  oath  indorsed  there 
on,  shall  be  recorded  in  the  office  of  the  recorder  of  the 
county  where  the  business  is  to  be  carried  on,  in  a  book  to 
be  kept  for  such  purpose.  After  the  order  has  been  duly 
made  and  recorded,  as  provided  above,  the  person  therein 
named  shall  be  entitled  to  carry  on  such  business,  in  her 
own  name,  and  the  property  revenues,  moneys  and  credits, 
so  invested,  shall  belong  exclusively  to  such  married  wo 
man,  and  shall  not  be  liable  for  any  debts  of  her  husband; 
and  said  married  woman  shall  be  allowed  all  the  privileges, 
and  be  liable  to  all  legal  processes,  now  or  hereafter  pro 
vided  by  law  against  debtors  and  creditors,  and  may  sue, 
and  be  sued,  alone,  without  being  joined  with  her  husband. 
But  nothing  contained  in  this  act  shall  be  deemed  to  au 
thorize  a  married  woman  to  carry  on  business  in  her  own 
name,  when  the  same  is  managed  or  superintended  by  her 
husband.  Any  married  woman  availing  herself  of  the  bene 
fit  of  this  act,  shall  be  responsible  for  the  maintenance  of 
her  children.  The  husband  of  the  wife  availing  herself  of 
the  benefit  of  this  act,  shall  not  be  responsible  for  any  debts 
contracted  by  her  in  the  course  of  the  said  business,  with 
out  the  special  consent  of  her  husband,  given  in  writing, 
nor  shall  his  separate  property  be  taken  on  execution  for 
any  debts  contracted  by  her.  All  persons  now  doing  busi 
ness  as  sole  traders,  under  the  law  of  which  this  is  amenda 
tory,  shall  have  six  months  from  and  after  the  first  day  of 
May,  eighteen  hundred  and  sixty-two,  in  which  to  give  the 
notice  and  take  the  proceedings  required  by  this  act ;  and  if 


HUSBAND  AND  WIFE.  161 

not  done  within  that  time,  or  if  the  application  be  denied  by 
the  court,  the  right  to  transact  business  as  a  sole  trader 
shall  no  longer  exist  :  provided,  however,  that  all  property 
rightfully  acquired  by  such  sole  trader,  previous  to  that 
time,  shall  be  held  by  her  as  her  separate  property.  Gen. 
Laws,  6915-6920. 

SEC.  29.  It  shall  be  lawful  for  any  married  woman,  by 
herself  and  in  her  name  or  in  the  name  of  any  third  person 
with  his  assent  as  her  trustee,  to  cause  to  be  insured  for  her 
sole  use,  the  life  of  the  husband,  for  any  definite  period,  or 
for  the  term  of  his  natural  life  ;  and  in  the  event  of  her  sur 
viving  her  husband,  the  sum  or  net  amount  of  the  insurance 
becoming  due  and  payable  by  the  terms  of  the  insurance, 
shall  be  payable  to  her  and  for  her  own  use,  free  from  the 
claims  of  the  representatives  of  the  husband,  or  of  any  of 
his  creditors,  or  of  any  parties  claiming  by,  through  or 
under,  him.  But  when  the  premium  or  any  part  thereof 
paid  in  each  year  out  of  the  funds  and  property  of  the  hus 
band,  shall  exceed  five  hundred  dollars,  such  exemption  from 
such  claims  shall  not  apply  to  so  much  of  said  insurance  as 
shall  be  in  proportion  to  said  excess  over  five  hundred  dol 
lars.  In  case  of  the  death  of  the  wife,  before  the  decease 
of  her  husband,  the  amount  of  the  insurance  may  be  made 
payable,  after  her  death,  to  her  children,  for  their  use,  or, 
if  under  age,  to  their  guardians. 

SEC.  30.  Any  married  woman  may  dispose  of  all  her 
separate  estate  by  will,  absolutely,  without  the  consent  of 
her  husband,  either  express  or  implied,  and  may  alter  or 
revoke  the  same  in  like  manner,  as  a  person  under  no  dis 
ability  may  do  ;  her  said  will  to  be  attested,  witnessed  and 
proved,  in  like  manner  as  all  other  wills. 

SEC.  31.  A  married  woman  shall  not  be  appointed  ad 
ministratrix,  and  if  she  shall,  while  unmarried,  have  receiv 
ed  such  appointment,  her  marriage  shall  extinguish  her 
authority.  Pub.  Laws,  1866,  p.  765. 

SEC.  32.     In  criminal  actions  the  husband  is  a  competent 

witness  against  the  wife,  and  the  wife  is  a  competent  witness 

against  the  husband,  but  neither  husband  nor  wife  shall  be 

compelled  or  allowed,  to  testify  in  such  cases  unless  by  con- 

21 


162  JUSTICES'  TREATISE. 

sent  of  both  of  them  :  provided,  that  in  all  cases  of  personal 
violence  upon  either  by  the  other,  the  injured  party  (hus 
band  or  wife)  shall  be  allowed  to  testify  against  the  other. 
Pub.  Laws,  1866,  p.  46. 


,  CHAPTER   XIV. 

CONTRACTS  FOE  MONEY  HAD  AND  EECEIYED. 

SECTION  1.  The  action  for  money  had  and  received  is  an 
equitable  action,  and  will  lie  whenever  the  defendant  has 
received  money  belonging  to  the  plaintiff,  which,  according 
to  natural  equity  and  justice,  he  ought  to  refund  or  pay  over. 
It  should  not  be  extended,  however,  to  cases  in  which  the 
defendant  may  be  deprived  of  any  right,  or  subjected  to  any 
inconvenience  thereby.  McCracken  vs.  City  of  San  Francisco, 
16  Cal.  638. 

SEC.  2.  Money  received  by  an  administrator  in  payment 
for  goods  sold  by  his  intestate  as  factor  upon  a  del  credere 
commission,  forms  no  parts  of  the  assets  of  the  estate,  and 
may  be  recovered  by  the  consignor  in  an  action  for  money 
had  and  received.  22  Cal.  516. 

SEC.  3.  In  an  action  by  the  consignor  for  money  had 
and  received,  the  amount  of  goods  sold  on  credit  by  the 
consignee  who  had  no  authority  so  to  sell,  can  be  recovered. 
Such  sale  must  be  taken  in  reference  to  the  rights  of  the 
plaintiff,  as  having  been  for  cash.  To  the  defendant  be 
longs  the  demand  which  the  sale  created  against  his  ven 
dee,  and  the  defendant  is  liable  to  the  plaintiff  as  for  money 
had  and  received.  Johnson  vs.  Totten  et  al.,  3  Cal.  347. 

SEC.  4.  F,  while  employed  as  boat  captain  by  the  defend 
ant,  a  corporation,  subscribed  for  its  stock  to  the  amount 
of  two  thousand  dollars,  and  shortly  afterwards  advanced  to 
the  company,  eight  hundred  and  twenty  dollars,  upon  a 
verbal  condition  that  if  he  should  be  retained  in  his  posi- ' 
tion  as  captain,  the  money  should  be  applied  as  his  stock 
subscription;  but  otherwise,  should  be  considered  a  loan, 
and  repaid.  F  was  soon  after  discharged  from  the  employ 
ment,  and  then  assigned  his  demand  to  plaintiff :  Held,  that 


CONTEACTS  FOE  MONEY  HAD  AND  RECEIVED.  163 

plaintiff  was  entitled  to  recover  of  defendant  the  amount 
advanced  as  money  had  and  received.  Allen  vs.  Citizens  S. 
Nav.  Co.,  22  Gal.  28. 

SEC  ,  5.  The  plaintiff  had  made  certain  advances  of  money, 
which  defendants  had  received  under  the  following  circum 
stances  :  They  were  holders  of  a  mortgage  given  to  secure 
the  payment  of  money  advanced  and  to  be  advanced  by 
themselves  and  others.  The  plaintiff  made  certain  advances, 
and  was  one  of  the  parties  intended  to  be  secured,  but  was 
no  party  to  the  mortgage.  The  defendants  assigned  the 
mortgage,  and  received  the  consideration,  but  refused  to  pay 
any  portion  of  it  to  the  plaintiff :  Held,  that  the  defendants 
occupied  towards  the  plaintiff  the  position  of  trustees,  and 
the  money  sued  for  was  received  by  them,  in  that  character. 
It  is  of  no  consequence  that  the  trust  was  created  by  a 
contract  to  which  the  plaintiff  was  not  a  party.  He  sub 
sequently  assented  to  it,  and  the  defendants  cannot  now 
repudiate  it,  and  retain  the  money,  which  they  would  not 
otherwise  have  received,  and  they  are  liable  to  an  action 
for  money  had  and  received.  Kreutz  vs.  Livingston  ei  al., 
15  Cal.  346. 

SEC.  6.  Where  one,  having  a  claim  to  collect,  agreed  with 
another  to  take  his  claim  against  the*  common  debtor  and 
treat  it  as  his  own  in  any  suit  brought  for  the  debt,  costs  and 
expenses  to  be  shared  pro  rota,  and,  afterwards,  prosecuted 
both  claims  to  judgment  in  his  own  name,  and  in  his  own 
name  bought  the  property  of  the  defendant  in  executive  sale 
and  left  it  with  an  agent  for  sale,  he  is  not  liable  to  an  action 
for  money  had  and  received,  or  in  indebitatus  ctssumpsiL  If 
the  defendant  had  undertaken  this  agency,  he  would  be 
bound,  though  it  were  gratuitously  undertaken,  to  good 
faith  and  ordinary  diligence  in  executing  what  he  pretended 
to  do ;  but  he  could  not  be  sued  for  money  received  if  he 
never  received  any,  though  he  failed  to  get  it  because  of  his 
gross  negligence  or  even  bad  faith.  If,  in  other  words,  he 
neither  directly  nor  indirectly  received  money  on  account 
of  this  agency,  though  he  might  be  responsible,  in  a  differ 
ent  form  of  action,  for  his  negligence,  he  would  not  be  held 
responsible  for  money  had  and  received,  or  in  the  form  of 
indebitatus  assumpsit.*  Herrick  vs.  Hodges,  13  Cal.  431. 


164  JUSTICES'  TEEATISE. 

SEC.  7.  Under  the  act  of  1857,  regulating  fees  of  office  in 
certain  counties,  the  sheriff  may  charge  fees  for  copies  of 
the  summons  and  injunction  served  by  him  in  a  suit,  though 
the  copies  were  prepared  and  printed  by  the  plaintiff,  and 
certified  by  the  clerk  at  the  plaintiff's  request ;  but  the 
sheriff  must  look  for  his  fees  to  plaintiff,  at  whose  request 
the  copies  were  served,  and  cannot  sue  the  clerk  for  money 
had  and  received — although  plaintiff  had  paid  the  clerk  for 
such  copies — unless  the  money  was  delivered  to  him  to  be 
paid  the  sheriff.  Edmondson  vs.  Mason,  16  Cal.  388. 


CHAPTER    XV. 
PAETNEESHIP. 


SECS. 


FORMATION  OF  PARTNERSHIP .  .  . .      1-1 J 

BIGHT  or  ONE  PAKTNEB  TO  SUB 

ANOTHER  AT  LAW .  12-15 

WHAT  CONTRACTS  BY  ONE  PART 
NER  BIND  THE  FIRM.  .  .  16-22 


SECS. 


Or  THE  DISSOLUTION  or  PART 
NERSHIP — CONTRACTS  SUB 
SEQUENTLY  MADE 23-25 

SURVIVING  PARTNER 26-29 

ACTIONS  BETWEEN 30-33 

MINING  PARTNERSHIP  . .  .  34-42 


Formation  of  Partnership. 

SECTION  1.  1st.  Limited  partnerships  for  the  transaction 
of  mercantile,  mechanical,  mining  or  manufacturing,  busi 
ness  within  this  state,  may  be  formed  by  two  or  more  persons, 
upon  the  terms  and  subject  to  the  conditions  and  liabilities 
prescribed  in  this  act  -^  but  nothing  contained  in  this  act 
shall  authorize  such  partnerships  for  the  purpose  of  bank 
ing  or  insurance. 

2d.  The  said  partnership  may  consist  of  one  or  more 
persons,  who  shall  be  called  general  partners,  who  shall  be 
jointly  and  severally  responsible  as  general  partners  are  by 
law,  and  of  one  or  more  persons  who  shall  contribute  to  the 
common  stock  a  specific  sum,  in  actual  cash  payment  as 
capital,  who  shall  be  called  special  partners,  and  who  shall 
not  be  personally  liable  for  any  debts  of  the  partnership, 
except  in  cases  hereinafter  mentioned. 

3d.  The  persons  forming  such  partnerships  shall  make 


PARTNERSHIP.  165 

and  severally  sign  a  certificate,  which  shall  contain  the  name 
or  firm  under  which  said  partnership  is  to  be  conducted, 
the  names  an£  respective  places  of  residence  of  all  the  gen 
eral  and  special  partners,  distinguishing  who  are  general 
and  special  partners,  the  amount  of  capital  which  each  spe 
cial  partner  has  contributed  to  the  common  stock,  the  gen 
eral  nature  of  the  business  to  be  transacted,  and  the  time 
when  the  partnership  is  to  commence,  and  when  it  is  to 
terminate. 

4th.  No  such  partnership  shall  be  deemed  to  have  been 
formed,  until  a  certificate,  made  as  aforesaid,  shall  be  ac 
knowledged  by  all  the  partners,  before  some  officer  author 
ized  to  take  acknowledgment  of  deeds,  and  recorded  in  the 
office  of  the  recorder  of  the  county  in  which  the  principal 
place  of  business  of  the  partnership  is  situated,  in  a  book 
to  be  kept  for  that  purpose,  open  to  public  inspection  ;  and 
if  the  partnership  shall  have  places  of  business  situated  in 
different  counties,  a  copy  of  the  certificate,  certified  by 
the  recorder  in  whose  office  it  shall  be  recorded,  shall  be 
filed  and  recorded  in  like  manner  in  the  office  of  the  re 
corder  in  every  such  county.  If  any  false  statement  shall 
be  made  in  any  such  certificate,  all  the  persons  interested 
in  the  partnership  shall  be  liable  as  general  partners  for  all 
the  engagements  thereof. 

5th.  The  partners  shall,  for  three  successive  weeks  imme 
diately  after  such  registry,  publish  a  copy  of  the  certificate 
above-mentioned  in  a  newspaper  printed  in  the  county, 
where  their  principal  place  of  business  is  situated,  and  if 
no  such  paper  be  there  printed,  then  in  a  newspaper  in  the 
state  nearest  thereto  ;  and  in  case  such  publication  be  not  so 
made,  the  partnership  shall  be  deemed  general. 

6th.  Upon  every  renewal  or  continuation  of  a  limited 
partnership,  beyond  the  time  originally  agreed  upon  for  its 
duration,  a  certificate  thereof  shall  be  made,  acknowledged, 
recorded  and  published,  in  like  manner  as  is  provided  in 
this  act  for  the  original  formation  of  limited  partnerships; 
and  every  such  partnership,  which  shall  not  be  renewed  in 
conformity  with  the  provisions  of  this  section,  shall  be 
deemed  a  general  partnership. 

7th.  The  business  of  the  partnership  shall  be  conducted 


166  JUSTICES'  TREATISE. 

under  a  firm  in  which  the  names  of  the  general  partners 
only  shall  be  inserted,  and  the  general  partners  only  shall 
transact  the  business.  If  the  name  of  any  special  partner 
shall  be  used  in  such  firm,  with  his  consent  or  privity,  or 
if  he  shall  personally  make  any  contract  respecting  the  con 
cerns  of  the  partnership,  with  any  person  except  the  general 
partners,  he  shall  be  deemed  and  treated  as  a  general  part 
ner. 

8th.  During  the  continuance  of  any  partnership,  under 
the  provisions  of  this  act,  no  part  of  the  capital  stock  thereof 
shall  be  withdrawn,  nor  any  division  of  interests  or  profits 
be  made,  so  as  to  reduce  such  capital  stock  below  the  sum 
stated  in  the  certificate  before-mentioned.  If  at  any  time 
during  the  continuance,  or  at  the  termination  of  the  part 
nership,  the  property  or  assets  shall  not  be  sufficient  to  pay 
the  partnership  debts,  the  special  partners  shall  severally 
be  held  responsible  for  all  sums  by  them  in  any  way  re 
ceived,  withdrawn  or  divided,  with  interest  thereon  from 
the  time  when  they  were  so  withdrawn,  respectively. 

9th.  No  general  assignment  by  such  partnership,  in  case 
of  insolvency,  or  where  their  goods  and  estates  are  insuffi 
cient  for  the  payment  of  all  their  debts,  shall  be  valid,  un 
less  it  provide  for  a  distribution  of  the  partnership  property 
among  all  the  creditors,  in  proportion  to  the  amount  of 
their  several  claims. 

10th.  In  case  of  an  assignment,  as  provided  for  in  the 
preceding  section,  the  assent  of  the  creditors  shall  be  pre 
sumed,  unless  within  sixty  days  after  notice  thereof,  they 
shall  dissent ;  and  no  such  assignment  shall  be  valid  unless 
notice  thereof  shall  be  given  in  some  newspaper  printed  in 
the  county  where  the  place  of  business  of  the  party  making 
it  is  situated,  or  if  no  newspaper  be  printed  in  such  county, 
then  in  some  newspaper  printed  in  the  state  nearest  thereto, 
within  fourteen  days  after  the  making  such  assignment. 

llth.  All  suits  respecting  the  business  of  such  partner 
ship,  shall  be  prosecuted  by  and  against  the  general  part 
ners  only,  except  in  those  cases  in  which  provision  is  made 
in  this  act;  that  the  special  partners  shall  be  deemed  general 
partners,  and  that  special  partnerships  shall  be  deemed  gen 
eral  partnerships,  in  which  cases  all  the  partners  deemed 


PAETNEKSHIP.  167 

general  partners  may  join  or  be  joined  in  such  suits,  and 
excepting  also  those  cases  where  special  partners  shall  be 
held  severally  responsible  on  account  of  any  sum  by  them 
received  or  withdrawn  from  the  common  stock,  as  before 
provided. 

12th.  No  dissolution  of  a  limited  partnership  shall,  take 
place,  except  by  operation  of  law,  before  the  time  specified 
in  the  certificate  before  mentioned,  unless  a  notice  of  such 
dissolution  shall  be  recorded  in  the  recorder's  office  in  which 
the  original  certificate,  or  the  certificate  of  renewal  or  con 
tinuation  of  the  partnership,  was  recorded,  and  unless  such 
notice  shall  also  be  published  for  three  successive  weeks  in 
some  newspaper  printed  in  the  county  where  the  certificates 
of  the  formation  of  such  partnerships  were  published,  accord 
ing  to  the  provisions  of  this  act;  and  if  no  newspaper  shall, 
at  the  time  of  such  dissolution,  be  printed  in  such  county, 
then  the  notice  of  such  dissolution  shall  be  published  in 
some  newspaper  in  this  state  nearest  thereto. 

13th.  In  all  other  cases,  not  otherwise  provided  for  in  this 
act,  the  members  of  limited  partnerships  shall  be  subject 
to  all  the  liabilities  and  entitled  to  all  the  rights  of  general 
partners.  Gen.  Laws,  4812-4824. 

SEC.  2.  The  following  form  is  appliable  for  limited  part 
nerships  : 

FOEM. 

Certificate  of  Limited  Parttiership. 

This  is  to  certify,  to  all  to  whom  these  presents  shall  come  :  That  we 
whose  names  are  hereunto  severally  described,  have  entered  into  a  limited 
partnership  within  the  state  of  California,  under  and  by  virtue  of  an  act  of 
the  Legislature  of  said  state  (and  acts  supplementary  thereto)  passed  the 
fourth  day  of  April,  A.D.  1850,  entitled  "An  act  to  authorize  the  formation  of 
limited  partnerships, "  upon  the  terms  and  liabilities  hereinafter  set  forth,  to 
wit  : 

1st.  The  said  partnership  is  to  be  conducted  under  the  name  and  style 
of 

2d.  The  names  of  the  general  partners  in  said  firm  are ,  and  are 

residents  of ,  and  the  names  of  the  special  partners  are ,  and 

are  residents  of state  aforesaid. 

3d.  The  said  special  partner ,  has  contributed  to  the  common 

stock  dollars,  and  the  said  special  partner ,  has  contributed 

to  the  common  stock dollars. 

4th.  The  nature  of  the  business  to  be  transacted  by  the  said  firm  is  [here 
state  the  business  which  is  intended]. 

* 


168  JUSTICES'  TREATISE. 

5th.  The  said  partnership  is  to  commence  immediately  at  and  after  the 
signing  of  this  certificate,  and  is  to  terminate  on  the  ....  day  of  ....  A.D. 
one  thousand  eight  hundred  and 

Made  and  severally  signed  by  the  said  partners  at  the  [city  or  town  of] 
....  on  the  ....  day  of  .....  one  thousand  eight  hundred  and  .... 


NOTE. — This  certificate  must  be  acknowledged  by  all  the  parties  before  it 
is  recorded. 

SEC.  3.  A  partnership  is  usually  constituted  as  between 
the  parties  themselves,  by  an  agreement  between  them  to 
share  the  profits  and  losses  of  their  joint  undertaking, 
whether  it  have  reference  to  a  trade  or  business,  or  merely 
to  some  particular  adventure.  Ex  parte  Geller,  1  Rose,  297. 

SEC.  4.  No  stranger  can  be  introduced  into  the  firm 
without  a  concurrence  of  all  the  members.  The  contract  of 
partnership  must  be  voluntary.  Kingman  vs.  /Spurr,  7  Pick. 
235,  238. 

SEC.  5.  The  delectus  personce  (choice  of  person),  as  it  is 
called,  is  so  essentially  necessary  to  the  constitution  of  a 
partnership,  that  even  the  executors  and  representatives  of 
partners  themselves  do  not  in  their  capacity  of  executors 
and  representatives,  succeed  to  the  state  and  condition  of 
partners.  3  Kent's  Com.  (5th  Ed.)  55,  56. 

SEC.  6.  In  order  to  constitute  a  partnership,  the  parties 
must  join  togetJier  their  money,  goods,  labor  or  skill,  for  the 
purpose  of  trade.  One  partner  may  therefore  bring  into 
the  trade  money,  another  goods,  and  a  third  labor  and  skill, 
and  they  will  thenceforward  be  partners,  as  between  them 
selves,  provided  they  share  proportionally  the  profit  and 
loss  of  the  concern.  Collyer  on  Part.  Sec.  16. 

SEC.  7.  Partners  to  Share  Equally. — In  the  absence  of  any 
special  agreement  between  partners  upon  the  subject,  the 
rule  of  law  is,  that  partners  are  to  share  equally  both  profits 
and  losses ;  .and  the  mere  fact  that  partners  have  put  in 
unequal  amounts  of  capital  into  the  common  stock,  or  that 
one  has  put  in  all  the  capital,  and  the  others  only  their  skill 
and  industry,  will  make  no  difference  in  the  rule.  Griggs 
vs.  Clark,  23  Cal.  427. 

SEC.  8.     It  seems  that  the  right  to  participate  in  profits, 


PARTNERSHIP.  169 

and  the  liability  to  contribute  to  losses,  create  a  partnership, 
however  unequal  the  shares  may  be  and  although  one  party 
has  no  direct  interest  in  the  capital  of  the  firm,  or  may  have 
no  right  to  any  definite  aliquot  proportion  of  the  profits. 
Again,  to  constitute  a  partnership  between  the  parties,  there 
must  be  a  communion  of  profit  between  them.  A  commun 
ion  of  profit  implies  a  communion  of  loss ;  for  every  man 
who  has  a  share  of  the  profits  of  a  trade  ought  also  to  bear 
his  share  of  the  loss.  But  an  express  stipulation  is  not 
necessary  to  the  sharing  of  the  profit  and  loss — that  is  an 
incident  to  the  joint  business.  Barrett  vs.  Sivann,  17  Maine, 
180  ;  16  Johns.  34. 

SEC.  9.  An  alien  ami  (friend)  may  be  a  partner.  Collyer 
on  Part.  Sec.  14.  But  it  seems  an  alien  enemy  cannot  be  a 
partner.  16  Johns.  438.  A  femme-covert  cannot  sanction 
this  relation,  except  by  some  custom  or  upon  the  civil  death 
of  her  husband,  or  where  he  has  deserted  her  and  abjured 
the  realm.  Collyer  oh  Part.  Sec.  15. 

SEC.  10.  A  man  may,  on  entering  into  partnership,  stip 
ulate  that,  as  between  himself  and  his  copartners,  he  shall 
not  be  liable  to  the  losses  of  the  concern  (Bond  vs.  Pittard, 
3  M.  &  W.  357,  361) ;  and  on  the  other  hand  a  participation 
in  the  profits  and  losses,  whatever  may  be  its  effect  with  re 
gard  to  the  rights  of  strangers  does  not  create  a  partnership, 
as  between  the  parties,  if  the  fact  negative  any  intention  or 
agreement  on  their  part  that  it  should  have  such  operation; 
for  although,  where  the  existence  of  a  partnership  between 
individuals,  good  strangers,  is  established,  the  law  will  pre 
sume  that  the  parties  have  agreed  to  be  partners  inter  se; 
yet  this  presumption  maybe  rebutted.  Hazard  vs.  Hazard, 
1  Story  s  C.  C.  371,  374,  375.  Thus,  the  loan  of  money  by 
A  to  B,  on  a  bond  securing  the  payment,  with  five  per  cent, 
interest,  and  a  covenant  that  the  lender  should  also  have  a 
share  in  the  profits  of  a  trade,  which  the  borrower  conduct 
ed  with  a  third  party,  but  should  not  be  liable  to  losses, 
does  not  create  a  partnership,  but  amounts  to  a  mere  usuri 
ous  contract,  there  being  no  bona  /ide  intention  to  become 
partners.  Hoses  vs.  Wilson,  4  T.  B.  353. 

SEC.  11.     If  several  persons  agree  upon  an  adventure, 

and  each  is  to  furnish  a  certain  proportion  of  goods  for  the 

22 


170  JUSTICES'  TREATISE.  x 

same,  the  whole  of  such  adventurers  are  not  liable,  jointly, 
for  the  share  of  each,  but  each  is  liable  individually,  to  the 
party  who  supplied  his  share,  and  no  partnership  arises  as 
to  the  goods  till  they  are  mixed  in  a  common  stock.  Saville 
vs.  Robertson,  4  T.  K.  720.  But  where  the  agreement  is  for 
a  joint  purchase  for  the  adventure,  the  joint  interest  and 
partnership  commences,  and  the  joint  responsibilities  at 
tach,  immediately  the  goods  are  bought.  Collyer  on  Part. 

Sec.  512. 

i 

Right  of  one  Partner  to  Sue  another  at  Law . 

SEC.  12.  It  is  a  clear  general  rule,  that  one  partner  can 
not  sue  his  copartner  at  law  in  respect  of  the  partnership 
accounts,  or  in  any  other  matter  connected  with  the  partner 
ship  transactions ;  whether  the  firm  exist  for  general  pur 
poses  or  have  reference  only  to  a  particular  trade  or  branch 
thereof.  Smith  vs.  Barrow,  2  B.  &  C.  401.  Nor  can  such 
a  partnership  claim  become  the  subject  of  a  set-off  (2 
Sing.  170) ;  for  this  reason,  that  a  court  of  law  cannot  do 
effectual  justice  between  the  parties,  the  investigation  and 
settlement  of  their  accounts  and  affairs  being  peculiarly  the 
province,  of  a  court  of  equity.  Collyer  on  Part.  Sec.  264, 
et  seq. 

Therefore,  one  partner  cannot  sue  his  copartner  for  money 
received  by  the  latter  for  the  use  of  the  firm,  nor  for  goods 
sold,  or  money  lent  to  or  for  work  done,  or  money  paid  for 
the  firm.  And  it  makes  no  difference  that  the  money,  in 
respect  of  which  one  partner  claims  contribution  from  his 
copartner,  was  paid  by  him  under  compulsion  of  law. 
Sadler  vs.  Nixon,  5  B.  &  Ad.  936. 

SEC.  13.  It  is  also  a  settled  rule,  that  if  partners  finally 
balance  all  their  accounts,  and  a  certain  sum  found  to  be 
due  to  one  of  them  thereon,  the  partner  against  whom  the 
balance  is  struck  may  be  sued  at  law  to  recover  the  amount, 
without  there  having  been  any  express  promise  on  his  part 
to  pay  the  same;  and  the  same  rules  holds  as  to  money 
found  to  be  due  from,  or  agreed  to  be  paid  by,  one  partner 
to  another  on  the  winding  up  of  any  adventure  in  which 
they  have  been  engaged.  Bacltstraw  vs.  Imber,  Holt,  368.  As 
for  the  reason  for  and  the  limits  of  this  rule,  see  the  re- 


PARTNERSHIP.  171 

marks  of  "VVilde,  J.,  in  Fanning  vs.  CJiadwicJc  (3  Pick.  423), 
and  in  Williams  vs.  Henshaw  (11  Pick.  82),  per  Morton,  J. 

SEC.  14.  If  one  of  several  plaintiffs  constituting  a  firm, 
be  also  a  partner  in  another  firm,  against  which  the  action 
is  brought,  such  action  cannot  be  maintained,  for  a  person 
cannot  be  one  of  the  plaintiffs,  and  also  one  of  the  defend 
ants  in  a  suit,  although  he  be  not  named  as  a  defendant  on 
the  record.  2B.&P.  120. 

SEC.  15.  The  fact  of  a  man's  becoming  a  partner  in  a 
company,  will  not  defeat  his  right  to  sue  the  company,  in 
respect  of  a  cause  of  action  which  had  accrued  to  him  prior 
to  his  becoming  a  member  thereof.  Lucas  vs.  Beach,  1  M. 
<fe  G.  417. 

What  Contracts  by  one  Partner  bind  the  Finn, 

SEC.  16.  The  general  rule  is,  that  the  act  or  contract  of 
one  partner,  with  reference  to  and  in  the  ordinary  course 
and  management  of  the  partnership,  business  and  affairs,  is, 
in  point  of  law,  the  act  or  contract  of  the  whole  firm,  and 
binding  on  them,  even  although  it  violate  some  private  ar 
rangement  between  the  partners.  Haivken  vs.  Bourne,  8 
How.  703. ' 

SEC.  17.  When  a  partnership  is  carried  on  in  the  name 
of  the  individual,  a  note  in  common  form,  signed  by  such 
individual,  will  not,  prima  facie,  bind  its  copartners ;  and 
upon  the  question,  whether  it  was  given  for  the  use  of  the 
copartnership,  the  burden  of  proof  is  upon  the  holder. 
Manuf.  and  Meek.  Bank  vs.  Welmhip,  5  Pick.  11. 

SEC.  18.  Firm  Indorsement  of  Note — When  one  of  two 
partners  indorse  a  note  in  the  name  of  the  firm,  as  an  accom 
modation  for  a  third  person,  without  the  authority  or  con 
sent  of  the  other  partner,  such  other  partner  is  not  bound 
by  the  indorsement,  as  to  any  party  taking  the  note  with 
notice  that  the  indorsement  was'  made  in  the  character  of 
surety ;  and  in  such  case  the  burden  of  proving  the  author 
ity  or  consent  of  the  copartner  rests  upon  the  person  hold 
ing  the  note.  37  Col.  113. 

A  promissory  note  made  in  the  firm  name  of  the  partner 
ship,  but  for  the  private  use  of  the  partner  making  it,  is 
binding  on  the  firm,  in  the  hands  of  an  innocent  holder, 


172  JUSTICES'  TREATISE. 

though  not  in  the  hands  of  one  having  knowledge  of  the 
fraud.  The  finding  of  the  district  court,  on  the  question 
of  the  knowledge  of  the  fraud,  and  as  to  the  question  of 
payment,  will  not  be  disturbed  when  the  cause  comes  up  a 
second  time  for  consideration.  Rich  vs.  Davis,  6  Cal.  141. 

SEC.  19.  It  was  formerly  a  question  of  some  doubt  how 
far  one  partner  could  bind  the  firm  by  signing,  in  the  name 
of  the  firm,  but  without  their  knowledge,  a  guaranty  for  the 
debt  of  a  third  person.  It  has  been  held  "that  if  one  give 
a  guaranty  in  the  name  of  all  the  partners,  it  binds  all ;"  and 
it  would  seem  from  the  case  of  Ex  parte  Gardom  (15  Yes. 
jun.  286),  the  same  opinion  was  held ;  but  the  point  did  not 
undergo  much  investigation  in  that  case.  But  in  another 
case  (Duncan  vs.  Lowndes,  3  Camp.  481),  it  appeared  that 
one  of  two  partners  had  signed  a  guaranty  in  the  name  of 
the  firm,  and  it  was  held  that  ' '  as  it  was  not  usual  for  mer 
chants  in  the  common  course  of  business  to  give  collateral 
engagements  of  that  sort,  the  plaintiff  should  prove  that 
the  partner  signing  had  authority  from  his  copartner  to 
sign  the  partnership  firm  to  the  guaranty."  And  this  is 
now  recognized  as  the  true  rule  on  this  subject. 

SEC.  20.  In  a  recent  case,  where  one  of  two  attorneys 
who  were  in  partnership,  signing,  in  the  name  of  the  firm, 
an  undertaking  to  pay  the  debt  and  costs  in  an  action,  in 
consideration  of  the  defendant  being  discharged  out  of  cus 
tody,  it  was  held  that  such  undertaking  did  not  bind  the 
firm,  it  not  being  a  transaction  in  the  usual  course  of  the 
business  of  attorneys,  and  there  being  no  evidence  that  the 
guaranty  was  given  in  pursuance  of  the  ordinary  practice  of 
the  parties.  And  the  same  rule  has  been  acted  on  in  other 
cases.  5  Q.  B.  833 ;  4  JExch.  623. 

SEC.  21.  And  where  there  is  an  authority  in  a  partner, 
either  by  special  agreement  or  otherwise  still  to  bind  the 
firm,  it  must  have  reference  to  the  regular  course  of  the 
partnership  business,  and  it  must  be  confined  to  advances 
made  or  given  to  the  partnership,  as  constituted,  at  the  time 
of  the  guaranty.  It  cannot  be  extended  to  new  advances 
or  credits  after  a  change  of  any  of  the  original  partners  by 
death  or  retirement.  Collyer  on  Part.  Sec.  421  ;  Story  on 
Part.  Sec.  127. 


PARTNERSHIP.  173 

SEC.  22.  Where  one  partner  gives  the  acceptance  of  the 
firm  in  payment  of  his  separate  debt,  without  authority  from 
his  copartner,  such  acceptance  does  not  bind  the  firm,  and 
that  the  petitioners  cannot  proceed  against  the  joint  estate. 
In  Ex  parte  Goulding  vs.  O'Neill  (2  G.  &  J.  118),  per  Yice 
Chancellor.  The  principle  of  this  decision  seems  to  be, 
that  the  mere  circumstance  of  the  debt  which  -forms  the 
consideration  for  the  bill,  being  due  only  from  the  partner 
who  actually  accepts  or  indorses  it,  ought  to  induce  the 
creditor  to  inquire,  whether  the  separate  debtor  had  the 
express  authority  of  his  copartners  to  give  the  instrument 
as  a  security  for  his  debt ;  and  that  fraud  shall  be  presumed, 
unless  the  express  authority  of  one  partner  thus  to  apply 
the  partnership  property  be  established.  By  the  case  of 
Heath  vs.  Samom  (2  B.  &  Ad.  291),  in  which  it  would  appear 
to  have  been  held,  that  if  it  were  shown  that  the  bill  or 
note  originated  under  such  circumstances,  even  an  indorsee 
of  auch  bill  or  note  could  not  sue  the  firm  thereon  without 
proving  he  took  it  for  value.  See  Mmroevs.  Cdoper,  5  Pick. 
412  ;  4  How.  (U.S.)  404;  2  Caines,  246.  But  this  latter  prin 
ciple  must  be  received  with  the  following  qualification,  viz  : 
that  in  such  a  case,  an  indorsee  cannot  be  put  to  prove  that 
he  gave  value  for  the  bill,  unless  he  be  affected  with  knowl 
edge  of  the  fraud.  12  Peters,  229  ;  3  Pick.  9. 


Of  the  Dissolution  of  Partnership,  and  of    Contracts    subsequently 

made. 

SEC.  23.     A  partnership  may  be  dissolved  : 

1st.  By  the  act  of  the  parties,  as  by  their  mutual  consent; 
and  where  no  specific  period  is  limited  for  the  continuance 
of  the  partnership,  either  party  may  dissolve  it  at  any  time. 

2d.  By  the  act  of  God,  as  by  the  death  of  one  of  the  part 
ners. 

3d.  By  operation  of  law,  as  where  one  of  the  partners 
becomes  bankrupt. 

4th.  Where  the  partnership  is  formed  to  effect  a  particu 
lar  object  which  is  found  to  be  impracticable. 

5th.  By  the  reason  of  the  willful  fraud  or  other  gross 
misconduct  of  one  of  the  copartners.  3  Fes.  74;  Collyer  on 


174  JUSTICES'  TREATISE. 

Part.  Sec.  113.  Or  in  the  manner  prescribed  in  the  twelfth 
division  of  the  first  section  of  this  chapter. 

SEC.  24.  Notice  of  Dissolution. — To  effect  the  rights  of 
one  dealing  with  a  partnership  firm,  actual  notice  of  its 
dissolution  must  be  brought  home  to  him.  Johnson  vs. 
Totten,  3  Cal.  343. 

SEC.  25.-  The  publication  of  the  notice  of  dissolution  in 
a  paper  taken  by  the  plaintiffs,  is  a  fact  from  which  a  jury 
may  infer  actual  notice.  The  court  has  no  right  to  charge 
the  jury  in  regard  to  conclusions  of  fact.  Treadwell  et  al. 
vs.  Wells  et  al.,  4  Cal.  260. 

Surviving  Partner. 

SEC.  26.  May  Dispose  of  the  Assets. — A  surviving  partner 
has  under  the  statute  of  May,  1850,  regulating  the  settlement 
of  the  estates  of  deceased  persons  (Sec.  198),  the  exclusive 
right  of  possession  and  the  absolute  power  of  disposition 
of  the  assets  of  the  partnership.  Allen  vs.  Hill,  16  Cal.  113. 

SEC.  27.  Settlement  of  Partnership  Affairs. — When  the 
partnership  is  dissolved  by  the  death  of  one  of  its  members, 
the  surviving  partner  is  to  wind  up  the  affairs  of  the  part 
nership,  and  pay  its  debts  out  of  the  assets,  if  sufficient, 
and  divide  the  residue,  if  any,  among  those  entitled  to  it. 
Gleason  vs.  White,  34  Cal.  258. 

SEC.  28.  The  relation  of  debtor  and  creditor,  between  the 
surviving  partner,  and  the  representatives  of  the  deceased 
partner  does  not  arise  until  the  affairs  of  the  partnership 
are  wound  up  and  a  balance  is  struck,  and  this  balance  is  to 
be  struck  after  all  the  partnership  affairs  are  settled,  and 
not  while  they  are  being  wound  up.  Gleason  vs.  JVJiite,  34 
Cal.  258. 

SEC.  29.  Claim  of  Surviving  Partner  against  Estate  of  De 
ceased  Partner. — If  the  partnership  is  indebted  to  the  sur 
viving  partner,  this  debt  is  a  contingent  claim  against  the 
estate  of  the  deceased  partner,  which  does  not  become  ab 
solute  until  the  partnership  affairs  are  settled,  and  it  is 
ascertained  that  there  are  no  partnership  assets  to  pay  the 
same.  Gleason  vs.  Wliite,  34  Cal.  258. 

Actions    Bet-ween. 
SEC.  30.      Replevying  Partnership  Property. — One  part- 


PARTNERSHIP.  175 

ner  cannot  sustain  an  action  againt  his  copartner  for  the 
delivery  of  personal  property  belonging  to  the  partnership. 
Buckley  vs.  Carlisle,  2  Cal.  420. 

SEC.  31.  Suit  at  Law. — Where  the  plaintiffs  and  defend 
ants  entered  into  a  partnership,  by  the  terms  of  which  the 
plaintiffs  were  to  advance  a  certain  sum  of  money  and 
materials  for  a  saw  mill,  which  they  did,  and  the  defendants 
removed  the  materials  furnished  by  plaintiffs  and  appro 
priated  the  same,  including  the  money,  to  their  own  usef 
Held,  that  the  plaintiffs  had  a  right  to  sue  therefor  at  law. 
and  for  damages  caused  by  defendants'  violation  of  the 
partnership  contract.  Crosby  vs.  McDermitt,  1  Cal.  146. 

SEC.  32.  Partners  cannot  sue  one  another  at  law  for  any 
of  the  business  or  undertakings  of  the  partnership.  This 
can  only  be  done  in  chancery  by  asking  for  a  dissolution 
and  an  account.  Stone  vs.  louse,  3  Cal.  292 ;  Russell  vs. 
Ford,  2  Cal.  86  ;  Nugent  vs.  Locke,  4  Cal.  381;  Barnstead  vs. 
Empire  Mining  Co.,  5  Cal.  299. 

SEC.  33.  A  bill  for  an  account  is  the  proper  remedy  for 
the  settlement  of  the  proceeds  of  a  joint  adventure,  where 
in  consideration  of  outfits  and  advances  made  by  plaintiffs, 
the  defendant  agreed  to  account  for  and  pay  over  a  propor 
tion  of  the  proceeds  of  his  labor,  and  speculations  of  every 
kind  for  a  certain  period  of  time,  although  the  parties  may 
not  have  been  technically  partners.  Garr  vs.  Redman,  6 
Cal.  574. 

Mining  Partnership. 

SEC.  34.  All  written  contracts  of  copartnership  for  min 
ing  purposes  upon  the  lands  of  the  United  States  within 
this  state,  formed  by  two  or  more  persons,  shall  be  subject 
to  the  conditions  and  liabilities  prescribed  by  this  act. 

Any  member  of  a  copartnership,  or  his  successor  in  in 
terest,  in  any  mining  claim',  who  shall  neglect  or  refuse  to 
pay  any  assessment,  or  shall  neglect  to  perform  any  labor 
or  other  liability  incurred  by  the  copartnership  agreement, 
may,  after  the  expiration  of  sixty  days  after  such  assess 
ment,  labor  or  other  liability,  has  become  due,  be  notified 
in  writing  by  any  remaining  partner  or  partners,  or  by  his  or 
their  agents,  that  such  assessment,  labor  or  liability,  is  due, 
which  written  notice  shall  specify  the  name  of  such  mine 


176  JUSTICES'  TEEATISE. 

and  the  district  wherein  it  is  located,  and  shall  particularly 
mention  the  liability  which  has  been  incurred ;  and  if  such* 
delinquent  reside  within  the  state  he  shall  be  personally 
served  with  such  notice  ;  and  if  the  person  so  notified  shall 
refuse  or  neglect,  for  thirty  days  after  service  of  such  written 
notice,  to  comply  with  the  requirements  of  the  copartner 
ship  agreement,  the  remaining  partner  or  partners  may  sell 
the  interest  of  such  delinquent  partner  in  and  to  such 
mining  claim. 

All  sales  under  the  provisions  of  this  act  shall  be  at  pub 
lic  auction,  and  by  giving  five  days'  notice  thereof,  by  post 
ing  written  notices  in  three  public  places  within  the  mining 
district  where  such  mine  is  located.  The  notice  shall  also 
specify  the  extent  of  the  interest  to  be  sold,  and  the  name 
of  the  delinquent  partner  or  partners,  and  the  time  and 
place  of  such  sale,  which  place  shall  be  within  the  district 
where  the  mine  is  located.  The  purchaser  at  such  sale  shall 
acquire  all  the  rights  and  title  of  the  delinquent  partner. 

If  any  delinquent  partner  in  any  mine  is  absent  from  the 
state,  or  resides  in  any  other  state  or  territory,  the  notice 
to  such  delinquent  shall  be  by  publication,  once  a  week  for 
four  months,  in  some  newspaper  published  in  the  county 
where  the  mine  is  located ;  or  if  there  be  no  newspaper  in 
the  county,  then  such  notice  shall  be  published  in  some 
newspaper  in  an  adjoining  county.  After  the  expiration  of 
the  time  of  such  publication,  the  interest  of  such  delinquent 
shall  be  sold  in  the  manner  prescribed  in  this  section. 

This  act  shall  take  effect  from  and  after  its  passage.  Gen. 
Laws,  4649-4652. 

SEC.  35.  What  Constitutes  a  Mining  Partnership. — If  two 
or  more  persons  acquire  a  mining  claim  for  the  purpose  of 
working  the  same  and  extracting  the  mineral  therefrom,  and 
actually  engage  in  working  the  same,  and  share  according 
to  the  interest  of  each  the  profit  and  loss,  the  partnership 
relation  subsists  between  them,  although  there  is  no  express 
agreement  between  them  to  become  partners,  or  to  share 
the  profits  and  losses.  Durgea  vs.  Burt,  28  Cal.  569. 

SEC.  36.  The  parties  owning  a  mining  claim  as  tenants 
in  common  and  engaged  in  working  the  same,  are  partners. 
Dougherty  vs.  Creary,  30  Cal.  290. 


PARTNERSHIP.  177 

SEC.  37.  An  agreement  between  one  or  more  persons 
who  claim  an  undeveloped  mine  and  another  person,  that 
if  the  latter  will  devote  his  labor  and  skill  in  exploring  and 
developing  -  the  mine,  the  former  will  furnish  him  in  tools 
and  provisions,  and  give  him  a  share  in  the  mine  if  it  proves 
valuable,  and  a  joint  working  of  the  mine  and  sharing  in 
the  profits  by  the  parties  after  developement,  constitutes 
one  of  those  qualified  partnerships  common  in  California, 
known  as  mining  partnerships.  Settembre  vs.  Putnam,  30 
Cal.  490. 

SEC.  38.  Contract  Concerning  Mining  Partnership. — Where 
a  person  claiming  an  undeveloped  mine,  agrees  with  another 
that  if  he  will  devote  his  labor  and  skill  in  its  developement, 
the  former  will  furnish  him  with  tools  and  provisions,  and 
give  him  an  equal  interest 'in  the  mine  in  case  it  shall  prove 
valuable,  the  latter  is  entitled  to  an  equal  interest  in  the 
mine  when  it  becomes  valuable,  if  he  devotes  his  labor  and 
skill  until  that  time.  30  Cal.  490. 

SEC.  39.  Where  a  mining  company,  not  incorporated, 
forms  a  trading  partnership  with  an  individual  under  a  firm 
name,  each  member  of  the  mining  company  is  a  member  of 
the  firm,  ^tc/tvs.  Davis  &  Co.,  6  Cal.  163. 

SEC.  40.  Where  the  several  owners  of  a  mine  unite  and 
co-operate  in  working  the  same,  they  form  a  mining  part 
nership,  which  is  governed  by  many  of  the  rules  relating  to 
ordinary  partnerships,  but  which  has  some  rules  peculiar  to 
itself.  Skittman  vs.  Lachman,  23  Cal.  198.  The  law  does 
not,  in  cases  of  mining  partnership,  imply  any  authority, 
either  to  a  member  of  such  partnership  or  to  its  managing 
agent,  to  bind  a  company  or  its  individual  members,  by  a 
promissory  note  or  a  contract  of  indebtedness,  executed  in 
the  name  of  the  company ;  but  it  is  incumbent  on  the  party 
claiming  to  hold  the  company  for  such  indebtedness,  to 
show  that  the  person  executing  or  contracting  the  same  in 
the  name  of  the  company  had  power  and  authority  to  do  so. 
23  Cal.  198. 

SEC.  41.  Mining  Claim  of  a  Mining  Partnership  is  Part 
nership  Property. — The  mining  grounds  belonging  to  and 
worked  by  a  mining  partnership  and  acquired  for  mining 
purposes,  whether  purchased  with  partnership  funds  or 


178  JUSTICES'  TEEATISE. 

brought  into  the  concern  by  individual  members  as  a  por 
tion  of  the  capital  stock  is,  in  equity,  for  the  purpose  of  a 
settlement  of  the  partnership  affairs,  to  be  treated  as  part 
nership  property.  Duryea  vs.  Burt,  28  Cal.  569. 

SEC.  42.  Dissolution  of  Mining  Partnership. — One  of  the 
partners  in  a  mining  partnership  may  convey  his  interest  in 
the  mine  and  business  without  dissolving  the  partnership. 
Duryea  vs.  Burt,  28  Cal.  569 ;  Skillman  vs.  Lachman,  28 
Cal.  198. 


CHAPTER    XVI. 
CONTBACTS    OF    SALE. 

[See  Sec.  28,  page  44.] 

SECTION  1.  In  order  to  constitute  a  valid  sale  of  personal 
property  against  creditors,  there  must  be,  according  to  the 
statute  of  this  state,  an  immediate  delivery  thereof,  accom 
panied  by  an  actual  and  continued  change  of  possession. 
Samuels  vs.  Gorham,  5  Cal.  226  ;  Wliitney  vs.  Stark,  8  Cal. 
514. 

SEC.  2.  The  change  of  possession  is  required  as  a  pro 
tection  against  creditors  and  subsequent  purchasers.  Page 
vs.  O'Neal,  12  Cal.  433 ;  Stewart  vs.  Scannell,  8  Cal.  80 ; 
Malone  vs.  Plato,  22  Cal.  103. 

SEC.  3.  The  change  of  possession,  or  the  delivery  of  the 
property  sold  to  the  purchaser,  is  not  necessaiy  to  the  va 
lidity  of  the  contract  between  the  vendor  and  vendee,  but 
is  only  so  as  to  creditors  and  subsequent  purchasers. 
Vishnor  vs.  Webster,  13  Cal.  58 ;  Montgomery  vs .  Flint,  5  Cal. 
366 ;  Thornburg  vs.  Hand,  1  Cal.  554 ;  Bickerstaff  vs.  Doub, 
19  Cal.  109. 

SEC.  4.  In  reference  to  the  sale  of  personal  property, 
the  contract  is  valid  as  between  the  parties,  without  a 
change  of  possession.  But  in  regard  to  third  parties,  to 
make  the  contract  good  as  against  them,  the  possession 
must  be  changed.  The  object  contemplated  by  the  law  is 
the  protection  of  others  against  fraud.  This  is  accom 
plished  by  giving  notice  of  the  sale ;  and  this  notice  is  given 


CONTEACTS  OF  SALE.  179 

by  a  change  of  possession.  Mitchell  vs.  Steelman,  8  Cal. 
375. 

As  the  object  of  changing  the  possession  is  to  give  notice 
to  subsequent  purchasers,  it  would  seem  that  although  the 
possession  was  not  in  fact  changed,  yet'  if  the  subsequent 
purchaser  takes  with  actual  notice,  he  is  not  injured,  and 
the  first  sale  must  stand.  As  the  end  contemplated  by  the 
law  has  been  attained,  the  intent  of  the  law  has  been  ful 
filled,  and  the  protection  designed  by  it  accomplished. 
The  fifteenth  section  of  our  statute  of  frauds  only  makes  the 
sale  of  personal  property  without  a  change  of  possession 
"conclusive  evidence  of  fraud  as  against  subsequent  pur 
chasers  in  good  faith."  If  hejbas  actual  notice,  he  cannot 
be  a  purchaser  in  good  faith.  8  Cal.  375. 

SEC.  5.  That  a  sale  of  personal  property  may  be  good  as 
against  creditors  and  subsequent  purchasers,  the  statute  re 
quires  that  the  vendee  must  take  actual  possession,  open  and 
unequivocal,  such  as  will  carry  with  it  unmistakable  marks 
of  ownership.  The  possession  must  be  continuous,  not 
taken  to  be  returned  again — not  formal,  but  substantial.  It 
need  not  continue  undefinitely,  but  it  must  continue  long 
enough  to  give  character  to  the  claim  of  it  by  the  vendee. 
Stephens  vs.  Irwin,  15  Cal.  503  ;  Engks  vs.  Marshall,  19  Cal. 
320. 

SEC.  6.  In  order  that  a  verbal  contract  for  the  purchase 
of  goods  or  chattels  at  a  price  exceeding  two  hundred  dol 
lars  may  be  saved  from  the  operation  of  the  statute  of  frauds 
by  a  delivery,  there  must  be  a  transfer  of  possession  evi 
denced  by  acts,  and  not  by  words  merely.  Malane  vs .  Plato, 
22  Cal.  103. 

SEC.  7.  Delivery  of  Possession. — "What  constitutes  a  deliv 
ery  depends  on  the  character  of  the  article  and  the  circum 
stances  of  the  case.  Cliaffin  vs.  Doud,  14  Cal.  384.  Where 
the  thing  purchased  is  susceptible  of  actual  and  immediate 
delivery,  such  actual  and  immediate  delivery  must  be  had. 
Stevens  vs.  Stewart,  3  Cal.  140.  By  an  immediate  change  of 
possession,  is  not  meant  (in  all  cases)  a  delivery  instanter, 
but  the  character  of  the  property  sold,  its  situation  and  all 
the  circumstances,  must  be  taken  into  consideration  in  de 
termining  whether  there  was  a  delivery  within  a  reasonable 


180  JUSTICES'  TREATISE. 

time,  so  as  to  meet  the  requirements  of  the  statute,  and 
this  will  be  often  a  question  of  fact  for  a  jury.  Samuels  vs. 
Gofham,  5  Cal.  226;  Lay\s.  Neville,  25  Cal.  545.  As,  where 
plaintiffs  purchased  of  B,  a  certain  number  of  cattle,  'and 
presented  to  C,  the  agent  of  B,  an  order  for  their  delivery. 
C  pointed  out  to  plaintiffs,  the  cattle  as  they  were  grazing 
in  view,  and  said  to  them:  "  I  deliver  you  the  possession." 
The  plaintiffs  then  employed  C  to  continue  in  charge  of  the 
cattle,  who  remained  in  charge  until  they  were  seized  by 
the  defendants :  Held,  that  this  was  a  delivery  as  immediate 
and  complete  as  the  nature  of  the  case  would  admit,  and 
was  followed  by  an  actual  and  continued  change  of  posses 
sion.  Montgomery  vs.  Hunt,  5  Cal.  366  ;  Hodgkins  vs.  Hook, 
23  Cal.  584. 

Where  cattle  are  running  at  large,  and  after  being  pur 
chased  they  are  gathered  together,  and  marked  with  the 
brand  of  the  purchaser,  constitutes  a  good  delivery  and 
continued  change  of  possession,  although  they  be  allowed 
to  roam  on  their  accustomed  pasture  afterward.  But  the 
mere  execution  of  a  bill  of  sale,  and  the  delivery  to  the 
purchaser  of  the  branding  iron,  unaccompanied  by  any  other 
acts,  does  not  constitute  a  delivery  of  possession.  Walden 
vs.  Murdoch,  23  Cal.  540. 

SEC.  8.  Words  alone,' unaccompanied  by  some  act,  which 
is  calculated  to  give  some  notoriety  to  the  change  or  afford 
some  notice  to  the  public  that  a  change  of  ownership  has 
been  effected,  will  not  constitute  a  delivery.  Gardet  vs. 
Belknap,  1  Cal.  399. 

SEC.  9.  Segregation  of  Property. — If  goods  are  sold,  while 
mingled  with  others,  by  number,  weight  or  measure,  the 
sale  is  incomplete,  and  the  title  remains  in  the  seller,  until 
the  bargained  property  is  separated  and  identified.  A  sale 
of  a  chattel  cannot  apply  to  any  article,  until  it  is  clearly 
designated  and  its  identity  ascertained,  as  where  there  is  a 
sale  of  a  given  number  of  cattle  then  running  in  a  herd  of 
a  larger  number,  is  an  executory  contract,  and  does  not 
apply  to  any  particular  cattle,  until  the  number  sold  have 
been  separated  from  the  herd.  McLaughlin  vs.  Piatti,  27 
Cal.  451. 

SEC.  10.     The  owner  of  a  quantity  of  flour  on  storage  in 


CONTEACTS  OF  SALE.  181 

a  warehouse,  may  sell  all  to  different  persons,  in  quantities 
less  than  the  whole,  by  giving  to  each  person  an  order  on 
the  warehouseman,  which  order,  when  delivered  to  him,  he 
may  accept,  and  by  charging  the  owner  with  the  amount  of 
each  order  so  accepted,  and  by  giving  a  receipt  to  each  of 
the  purchasers  for  so  much  flour  as  is  indicated  by  each 
order,  and  crediting  each  purchaser  with  the  amount  of  his 
purchase  on  his  books,  is  a  sufficient  delivery  of  possession 
without  a  separation  of  the  various  lots.  But  where  he 
sells  only  a  part  of  the  goods  on  storage,  those  sold,  if  all 
together  and  of  the  same  mark,  must  be  separated  from 
the  larger  mass  in  order  to  change  the  possession.  It 
would  be  a  sufficient  delivery,  if  all  the  goods  of  the  ven 
dor  in  the  hands  of  a  third  party  were  sold,  if  the  pur 
chaser  should  present  the  vendor's  order  for  the  goods,  take 
a  receipt  for  them,  and  have  the  vendor  charged,  and  himself 
credited  with  them  on  the  books  of  the  warehouseman. 
Horr  vs.  Barker,  8  Cal.  603. 

SEC.  11.  Warehouse  Receipt. — The  delivery  of  a  ware 
house  receipt,  which  was  given  to  A,  stating  that  the  goods 
named  and  described  therein  are  deliverable  on  the  return 
of  the  receipt,  is  sufficient,  prima  facie,  to  pass  the  title  to  B, 
who,  being  in  possession  of  the  receipt,  presents  the  same. 
There  is  no  substantial  difference  in-  this  respect  between  a 
warehouse  receipt  and  a  bill  of  lading.  Horr  vs.  Barker, 
8  Cal.  609. 

SEC.  12.  Time. — Delivery,  as  to  the  time  when  it  should 
be  perfected,  depends  on  the  nature  of  the  thing.  Hay  can 
not  be  delivered  until  it  is  in  a  condition  to  be  taken  into 
possession.  Growing  crops  are  not  goods  and  chattels, 
within  the  meaning  of  the  statute  of  frauds,  and  will  pass 
by  deed  of  conveyance  from  the  very  necessity  of  the  case, 
as  they  are  not  susceptible  of  manual  delivery  until  har 
vested  and  reduced  to  actual  possession.  Boilrs  vs.  Web 
ster,  6  Cal.  661 ;  affirmed  in  Bernal  vs.  Hovious,  17  Cal.  541. 

SEC.  13.  The  memorandum  required  by  the  statute  of 
frauds  to  be  entered  by  an  auctioneer  in  his  sale-book  must 
be  made  at  the  very  time  of  the  sale,  or  the  vendee  will  not 
be  bound  by  the  contract.  So  held  in  a  case  where  the  sale 
at  auction  took  place  in  the  forenoon,  and  the  memorandum 


182  JUSTICES'  TREATISE. 

was  not  made  by  the  auctioneer  before  the  evening  of  the 
same  day.  Craig  vs.  Godfrey,  1  Cal.  415. 

SEC.  14.  Where  an  auctioneer  sells  a  balance  of  goods, 
without  specifying  their  quantity,  he  has  a  reasonable  time 
to  ascertain  it;  when  this  is  done,  and  a  bill  of  particulars 
is  made  out  and  delivered  to  the  purchaser,  who  pays  the 
purchase  money  or  a  portion  of  it,  the  contract  becomes 
executed,  and  the  auctioneer  will  not  afterwards  be  permit 
ted  to  allege  a  mistake  as  to  the  quantity  sold.  Until  an 
account  is  rendered  of  the  quantity  the  purchaser  is  com 
pletely  within  the  auctioneer's  power;  and  this  power  would 
be  continued,  if  afterwards  he  were  allowed  to  allege  a  mis 
take.  If  he  chose  to  act  in  bad  faith,  he  might  take 
advantage  of  a  rising  or  falling  market,  and  increase  or 
diminish  the  quantity  accordingly.  Besides,  the  purchaser, 
after  receiving  the  bill  which  is  rendered,  is  presumed  to 
act  with  reference  to  it,  and  to  enter  into  other  contracts, 
relying  upon  the  faith  of  it.  Where  a  mistake  occasions 
loss,  it  must  be  suffered  by  him  who  makes  it.  Burgoyne 
et  al.  vs.  Middleton,  4  Gal.  66,  67. 

SEC.  15.  Fraud. — The  rule  is  the  most  just  and  reasona 
ble,  that  where  a  person,  clearly  insolvent,  purchases  goods 
from  another,  on  credit,  and  conceals  the  fact  of  insolvency 
from  the  vendor,  he  is  guilty  of  such  fraud  as  vitiates  the 
sale.  The  insolvency  ought  to  be  clear,  and  not  subject  to 
any  reasonable  doubt.  And  the  purchaser  must  be  held  to 
know  the  true  state  of  his  own  business  ;  and,  if  he  does  not, 
the  consequences  should  not  be  visited  upon  the  party  who 
had  not  the  means  of  knowing.  Seligman  vs.  Kalkman,  8 
Cal.  215. 

SEC.  16.  A  sale  of  personal  property,  with  intent  to 
benefit  the  seller  and  injure  creditors,  is  fraudulent  and 
void.  Eiddell  vs.  Shirley,  5  Cal.  488. 

SEC.  17.  When  not  Void. — A  bo nafide  purchase  made  by 
a  creditor,  of  the  goods  of  his  debtor,  who  is  in  insolvent 
circumstances,  is  not  fraudulent,  merely  because  such  cred 
itor  thereby  obtains  a  preference  over  other  creditors,  and 
may  be  aware  at  the  time  that  his  purchase  will  have  the 
effect  of  delaying  or  defeating  the  other  creditors  in  the 
collection  of  their  debts.  Walden  vs.  Murdoch,  23  Cal.  540. 


WAGER,    CONTRACT  OF.  183 

The  rule  of  law  in  regard  to  the  right  of  a  failing  debtor  to 
give  a  preference  to  some  of  his  creditors,  have  no  applica 
tion  to  a  sale  for  cash  to  a  person  not  a  creditor,  although 
the  proceeds  may  have  been  applied  to  pay  creditors. 
Marnlock  vs.  White,  20  Cal.  598. 


CHAPTER   XVII. 
WAGEE,    CONTRACT    O*F. 

SECTION  1.  Wager. — A  wager  is  a  bet;  a  contract  by 
which  two  parties,  or  more,  agree  that  a  certain  sum  of 
money  or  other  thing,  shall  be  paid  or  delivered  to  one  of 
them  on  the  happening  or  not  happening  of  an  uncertain 
event.  Bouv.  Law  Diet.  617. 

SEC.  2.  All  notes,  bills,  bonds,  mortgages  or  other  se 
curities  or  conveyances,  whatever,  in  which  the  whole  or 
any  part  of  the  consideration  shall  be  for  any  money  or 
goods,  won  by  gaming  or  playing  at  cards,  dice  or  any 
other  game,  whatever,  or  by  betting  on  the  sides  or  hands 
of  any  person  gaming,  or  for  reimbursing  or  repaying  any 
money  knowingly  lent  or  advanced  for  any  gaming  or  bet 
ting,  or  lent  or  advanced  at  the  time  and  place  of  such 
gaming  or  betting,  shall  be  void  and  of  no  effect,  as  between 
the  parties  to  the  same  and  as  to  all  persons,  except  such 
as  shall  hold  or  claim  under  them  in  good  faith  and  with 
out  notice  of  the  illegality  of  the  consideration  of  such  con 
tract  or  conveyance.  Gen.  Laivs,  3324. 

SEC.  3.  When  Recoverable. — Wagers  are  recoverable  in 
this  state  as  at  common  law,  except  such  as  are  prohibited 
by  law,  or  are  against  public  policy,  or  calculated  to  effect 
the  interest,  character  or  feelings,  of  third  parties.  John 
son  vs.  Fall,  6  Cal.  359. 

SEC.  4.  Bet  on  Elections. — A  party  placing  money  in  the 
hands  of  another  for  the  purpose  of  making  a  bet  on  an 
election,  in  the  name  of  the  bailee  but  for  the  benefit  of  the 
bailor,  may  retract  the  illegal  act  of  making  the  bet,  and 
does  not  forfeit  the  money  by  reason  of  the  illegality  of  the 


184  JUSTICES'  TREATISE. 

purpose  for  which  it  was  deposited.  Hardy  vs.  Hunt,  11 
Cal.  343. 

SEC.  5.  Bailor. — The  bailor  does  not  part  with  the  own 
ership  by  allowing  it  to  be  used  for  his  benefit,  though  in 
the  name  of  another.  The  money  in  the  hands  of  the  agent 
remains,  as  between  him  and  the  principal,  the  money  of 
the  principal.  11  Cal.  343. 

SEC.  6.  detraction. — Upon  the  retraction  of  the  wager, 
the  right  to  the  possession  of  the  money  is  in  the  agent  or 
bailee,  and  he  may  maintain  an  action  for  it  where  the 
bailor  interposes  no  objection.  11  Cal.  343. 

SEC.  7.  Money  won  at  play  cannot  be  recovered  at  com 
mon  law.  2  Cal.  81. 

SEC.  8.  No  action  will  lie  to  recover  money  lost  at  play 
in  a  common  gaming  house.  The  practice  of  gaming  is 
vicious  and  immoral  in  its  nature,  and  ruinous  to  the  har 
mony  and  well-being  of  society.  3  Cal.  329. 

SEC.  9.  The  plaintiff,  being  the  keeper  of  a  public  gam 
ing  room,  won  of  the  defendant  four  thousand  dollars  at  the 
game  of  faro.  The  money  not  being  paid,  an  action  was 
brought  to  recover  it :  Held,  that  it  could  not  be  sustained. 
Such  a,  debt  was  not  recoverable  at  common  law.  Doubted, 
2  Cal.  66;  affirmed,  3  Cal.  329;  1  Cal.  441: 

1st.  Four  thousand  dollars,  if  won  under  any  circum 
stances,  at  what  is  called  a  round  game,  and  in  a  private 
room,  could  not  be  recovered,  because  the  amount  is  so 
large  as  to  be  excessive. 

2d.  The  fact  of  its  being  won  at  a  bank  game,  such  as/aro, 
makes  its  recovery  unlawful. 

3d.  That  is,  being  won  at  a  common  gaming  house,  by 
the  owner  and  keeper  thereof,  would  alone  bar  the  recovery. 
Doubted,  2  Cal.  661 ;  1  Cal.  443,  444. 

SEC.  10.  At  common  law,  all  wagers  were  recoverable, 
except  such  as  were  prohibited  by  law,  were  against  public 
policy,  or  calculated  to  affect  the  interest,  character  or  feel 
ings,  of  third  parties.  The  common  law  having  been  adopt 
ed  as  the  rule  of  decision  in  this  state,  it  must  be  enforced, 
leaving  all  questions  of  its  policy,  as  applied  to  a  particular 
class  of  contracts,  for  the  consideration  of  the  legislature. 
6  Cal.  361. 


WAGER,   CONTRACT  OF.   ,  185 

SEC.  11.  A  wager  on  an  election'  is  illegal  and  void,  as 
against  public  policy ;  the  direct  effect  of  such'wagers  being 
to  affect  the  purity  of  elections.  11  Col.  347.  An-  action  to 
recover  a  wager  of  this  sort  cannot  be  maintained.  The 
party  depositing  the  money  for  this  illegal  purpose,  may 
retract  the  illegal  act.  The  money  is  not  forfeited  for  the 
benefit  of  the  stakeholder.  He  holds  it  as  bailee  of  the 
depositor,  who  may  resume  it  at  any  time  before  it  is  paid 
over  to  the  winner.  11  Cal  348. 

SEC.  12.  Wagers  which  tend  to  excite  a  breach  of  the 
peace,  or  are  contra  bonas  mores,  or  which  are  against  the 
principles  of  sound  policy,  are  illegal ;  and  no  contract 
arising  out  of  any  such  illegal  transaction  can  be  enforced. 
These  are  principles  of  the  common  law  which  have  been 
adopted  in  this  state.  1  Cal.  444. 

SEC.  13.  Wagers. — At  common  law,  wagers  made  in  re 
spect  to  matters  not  affecting  the  feelings,  interest  or  charac 
ter,  of  third  persons,  or  the  public  peace-or  good  morals,  or 
public  policy,  are  legal  contracts,  which  may  be  enforced 
by  action.  37  Cal.  607. 

SEC.  14.  Wagers  upon  Elections. — Wagers  upon  the  result 
of  elections  are  against  public  policy,  and  are  therefore 
void  ;  and  hence  money  put  up  in  the  hands  of  stakeholders 
may  be  recovered  if  the  wager  be  repudiated  and  a  return 
of  the  money  be  demanded  at  any  time  before  the  election 
has  taken  place,  and  the  result  has  become  generally  known, 
but  not  thereafter.  37  Cal.  607. 

SEC.  15.  J  made  a  wager  with  F,  that  Seymour  would 
receive  a  majority  of  the  votes  cast  in  this  state  at  the  presi 
dential  election  in  1868,  and  F  made  a  wager  with  J,  that 
Grant  would  receive  a  majority  of  said  votes ;  the  money  was 
put  into  the  hands  of  R,  a  stakeholder.  After  the  election 
had  taken  place  and  the  result  had  become  known,  J,  hav 
ing  lost  his  wager,  and  demanded  his  money,  but  B,  not 
withstanding  paid  the  money  to  F  according  to  the  terms  of 
the  wager.  In  an  action  by  J  against  R  to  recover  his  stake, 
it  was  held  that  a  recovery  could  not  be  had.  37  Cal.  607. 


186  JUSTICES'  TREATISE. 

CHAPTER     XVIII. 
WORK  AND  LABOR, 


SPECIAL  CONTRACTS 1-8 

ENTIBETY  OF  CONTEACT.  .  9-18 


IMPLIED  LIABILITY  FOP. 19-32 

DAMAGES..  .  33-34 


Special  Contracts. 

SECTION  1.  Contracts  for  Work,  Labor  and  Services. — 
These  may  be  under  seal,  in  writing,  without  seal  and  oral. 
They  are  frequently  for  work  and  labor,  and  material  fur 
nished  or  used  in  the  service,  as  where  I  employ  a  carpenter 
to  build  me  a  house  and  furnish  a  portion  of  all  the  mate 
rial.  They  are  subject  to  all  the  general  rules  which  govern 
contracts  in  relation  to  the  sufficiency,  legality  and  moral 
ity,  of  their  consideration,  and  to  the  rights  of  the  parties 
claiming  under  them.  The  contract  may  be  express  in  all 
its  parts,  or  it  may  be  express  only  in  relation  to  the  man 
ner  the  service  is  to  be  performed,  leaving  the  time  of  per 
formance  and  the  price  of  the  service  to  be  implied.  It  may 
also  be  implied  from  the  circumstances  of  the  person  for 
whom  the  service  is  performed  and  his  obligation  to  have 
it  performed ;  as,  where  a  physician  attends  his  child  who 
is  taken  suddenly  ill  and  requires  his  services.  Coweris 
Treatise,  108. 

SEC.  2.  Where  there  is  an  express  contract  for  a  par 
ticular  amount  and  mode  of  payment,  the  party  rendering 
the  services  must  rely  upon  it.  Thus,  if  I  employ  a  man  to 
build  a  house  at  a  certain  price,  mentioning  ho  time  of  pay 
ment,  he  will  not  be  entitled  to  his  payment  until  he  has 
finished  it.  If  I  hire  a  laborer  for  one  year  at  the  rate  of 
twelve  dollars  a  month,  without  a  special  clause  in  the  con 
tract,  he  cannot  recover  his  wages  until  the  end  of  the  year. 
8  Cow.  63. 

SEC.  3.  Where  the  agreement  is  to  perform  a  particular 
piece  of  work,  or  to  labor  for  a  certain  period,  whether  the 
price  is  or  is  not  specified  in  it,  the  person  employed  ac 
quires  no  right  to  any  part  of  his  compensation  until  he  has 
fully  performed  his  part  of  the  contract.  The  contract  is 


WORK  AND  LABOR.  187 

• 

considered  entire,  and  he  cannot  perform  a  part  of  it  by 
doing  a  portion  of  the  work,  or  working  a  portion  of  the 
period  and  then  breaking  off  without  his  employer's  con 
sent,  without  not  only  forfeiting  all  right  to  recover  for 
what  he  has  done  or  the  time  he  has  labored,  but  also  ren 
dering  himself  liable  for  breach  of  his  contract.  Thus, 
where  M  agreed  to  work  for  P  for  a  year,  and  worked  ten 
months  and  a  half  and  left,  refusing  to  work  longer,  but  in 
two  days  returned  and  offered  to  fulfill  his  contract,  it  was 
held,  that  having  wantonly  deserted  P's  service  without  his 
fault,  he  was  guilty  of  violation  of  the  contract,  and  P  was 
under  no  obligation  to  receive  him  again  or  to  pay  him  for 
his  services  for  the  ten  months  and  a  half.  8  Cow.  63. 

SEC.  4.  So,  where  one  contracted  to  cure  a  flock  of  sheep 
of  the  scab,  he  was  not  permitted  to  recover  for  his  services 
in  curing  a  part,  the  remainder  not  being  cured.  6  D.  & 
R.  3. 

SEC.  5.  Where,  however,  the  person  contracting  to  do 
the  service  is  an  infant,  and  he  performs  a  portion  of  it,  he 
may  recover  what  is  the  reasonable  value  of  the  services 
performed.  2  Pick.  332. 

SEC.  6.  The  rule  in  relation  to  ordinary  employment  of 
a  servant  for  a  limited  period,  where  a  portion  of  the  ser 
vice  is  performed,  and  the  remainder  prevented  by  death  or 
illness  of  the  servant,  and  not  by  his  willful  default,  is  that 
he  shall  be  paid  for  the  time  actually  spent  in  the  service 
its  proper  proportion  of  the  price.  6  Pick.  326. 

SEC.  7.  In  contracts  for  work  and  labor  between  masters 
and  servants,  there  may  be  misconduct  on  the  part  of  either 
master  or  servant  which  will  justify  the  other  party  in 
rescinding  the  contract.  Thus,  if  a  master  so  maltreat  his 
servant  that  he  cannot  safely  remain  in  his  employment,  or 
as  to  indicate  a  willingness  to  be  rid  of  him,  the  servant 
may  leave  him  and  recover  his  wages  for  the  time  he  has 
served.  But  the  employment  of  harsh  language  alone  is 
not  sufficient  to  warrant  him  in  leaving.  So,  if  the  servant 
conducts  himself  improperly,  as,  if  he  assaults  another  of 
his  employer's  servants  with  intent  to  ravish  her,  or  if  he 
refuse  to  perform  a  reasonable  command  of  his  master,  he 
may  dismiss  him,  and  the  servant,  although  hired  by  the 


188  JUSTICES'  TREATISE. 

* 

year,  cannot  recover  for  the  time  lie  has  served.     4  Car.  & 
P.  208. 

SEC.  8.  "Where  a  special  contract  for  the  performance  of 
work  is  proved,  but  it  is  also  shown  that  the  contract  has 
been  deviated  from,  the  judgment  will  not  be  reversed  on 
the  ground  that  the  court  below  admitted  testimony  as  to 
the  value  of  plaintiff's  services.  DeBoom  vs.  Priestly,  1 
Cal.  206. 

Entirety  of  Contracts. 

SEC.  9.  Entire  Contract. — The  rule  is  well  settled,  that 
where  a  person  agrees  to  work  for  a  certain  period,  at  such 
a  price,  or  to  perform  certain  services  for  such  an  amount, 
that  he  cannot  break  off  at  his  own  pleasure,  and  maintain 
an  action  for  the  work,  so  far  as  he  has  gone.  Performance 
is  a  condition  precedent  to  payment.  Hutcliinson  vs.  Wet- 
more,  2  Cal.  311. 

SEC.  10.  The  plaintiff  agreed  to  labor  for  defendant  for 
eight  months,  at  the  rate  of  one  hundred  dollars  per  month 
for  himself,  and  one  hundred  dollars  for  his  wife ;  and  stip 
ulating  that  the  defendant  should  give  his  note  to  plaintiff 
at  the  end  of  four  months,  payable  at  the  expiration  of  his 
term  of  service  ;  and  that  the  wages  for  the  last  four  months 
were  not  to  be  paid  until  the  expiration  of  eight  months 
from  the  commencement  :  Held,  that  the  contract  was  entire 
for  eight  months'  labor  ;  and  that  no  action  would  lie  to 
recover  the  value  of  part  of  the  services  performed.  Hutch- 
inson  vs.  Wetmore,  2  Cal.  311. 

SEC.  11.  In  suit  to  recover  for  services  for  half  a  year, 
under  a  contract  to  work  for  a  whole  year,  plaintiff  having 
quit  the  employment  of  defendant,  it  requires  slight  evi 
dence  of  assent  or  agreement  to  apportion  the  contract  and 
allow  plaintiff  to  recover.  Hoganvs.  Titlow,  14  Cal.  255. 

SEC.  12.  Where  the  contract  is  not  entire,  as  where  one 
is  employed  to  do  certain  work,  and  to  be  paid  from  time  to 
time  as  it  progresses,  or  to  work  for  a  year,  and  to  be  paid 
monthly  or  quarter-yearly,  and  in  all  cases  where,  by  the 
terms  of  the  agreement,  payment  is  to  be  made  on  partial 
performance,  an  action  will  lie  for  money  payable  as  fast  as 
it  becomes  due  by  the  terms  of  the  contract.  In  such  cases, 
however,  the  other  party  may  show  the  damages  which  he 


WORK  AND   LABOE.  189 

has  sustained  in  consequence  of  the  non-performance  of  the 
residue  of  the  contract,  in  diminution  or  extinguishment  of 
the  claim  established  against  him.  In  technical  language, 
he  may  recoupe  his  damages.  14  Wend.  257. 

SEC.  13.  Terms  of  Contract. — Where  a  hired  person  con 
tinues  in  employment  after  the  expiration  of  the  contract, 
and  without  any  new  contract,  the  fair  presumption  is,  that 
both  parties  understood  that  the  same  salary  was  to  be  paid. 
And  it  is  therefore  error,  in  a  suit  by  the  servant  to  allow 
him  to  recover  upon  a  quantum  meruit.  NicJiolson  vs. 
.Patch-in,  5  Cal.  474. 

SEC.  14.  Where  there  is  a  special  agreement  for  certain 
work,  as,  to  build  or  repair  a  house  or  ship,  and  the  price 
or  time  of  payment  is  fixed,  if  the  parties,  by  mutual  con 
sent,  change  the  plan,  the  terms  of  the  contract,  as  far  as 
they  will  apply,  will  regulate  the  price  and  time  of  payment 
of  the  new  work.  Where,  however,  the  change  is  so  great 
that  the  terms  of  the  contract  do  not  apply  to  the  new 
work,  the  latter  is  considered  as  done  under  a  new  and 
distinct  agreement,  both  as  to  price  and  time  of  payment, 
and  as  neither  is  fixed  by  its  terms,  the  price  will  be  what 
the  service  is  reasonably  worth,  and  the  payment  will  be 
due  as  the  service  is  performed.  10  Johns.  36;  12  Cal.  274. 

SEC.  15.  If  a  builder  contract  to  build  a  house  of  speci 
fied  dimensions  and  with  specific  material,  and  deviate 
from  the  specifications,  he  cannot  recover ;  but  where  one, 
not  a  builder,  finishes  work  differently  from  the  specifica 
tion,  and  the  employer  accepts  it,  he  may  recover  the  con 
tract  price,  deducting  such  a  sum  as  it  would  require  to 
complete  it  according  to  the  specification.  Cow.  Treatise, 
112. 

SEC.  16.  Where  one  has  ordered  a  carriage  or  other 
chattel  to  be  made  for  him  by  a  mechanic,  and  it  is  made 
pursuant  to  the  order,  and,  on  being  tendered  to  him,  he 
refuses  to  accept  and  pay  for  it,  it  may  be  left  in  charge  of 
a  third  person  with  notice  to  the  customer,  and  an  action 
maintained  for  the  price;  or  it  may  be  sold  for  the  best 
price  it  will  bring  and  an  action  be  brought  for  the  loss 
upon  the  sale.  15  Wend.  497. 

SEC.  17.     Where  one  contracts  to  do  certain  work  by  a 


190  JUSTICES'  TKEATISE. 

given  time,  but  not  to  do  a  portion  of  it  until  directed  by 
his  employer,  the  employer  cannot  suspend  the  work  so 
long  as  to  prevent  its  completion  within  the  time  agreed 
upon.  If  he  does,  and  then  directs  the  work  to  be  per 
formed,  the  contractor  is  not  limited  by  the  contract  price, 
but  can  recover  upon  the  implied  agreement  to  pay  what 
the  work  so  performed  is  worth.  4  Wend.  285. 

So,  if  there  be  a  special  agreement,  whether  sealed  in 
writing  or  oral,  to  do  a  piece  of  work,  and  it  be  done  with 
the  assent  of  the  employer,  although  not  pursuant  to  it, 
either  in  point  of  time  or  other  respects,  the  contractor  can 
recover  what  the  work  was  reasonably  worth.  4  Wend.  285. 

SEC.  18.  "Where  a  contractor  puts  into  an  article  better 
materials  than  he  is  required  to  by  his  'contract,  he  cannot 
on  that  account  recover  more  than  the  stipulated  price,  nor, 
after  delivery  of  the  article,  require  it  to  be  returned  be 
cause  the  buyer  will  not  pay  an  increased  price  for  it.  So, 
where  work  is  undertaken  at  a  given  price,  the  employer  is 
not  liable  to  pay  a  greater  sum  by  consenting  to  alterations 
from  the  original  plan,  unless  he  is  either  expressly  in 
formed  or  must  necessarily,-  from  the  nature  of  the  work,  be 
aware  that  the  alteration  will  increase  the  expense.  3  Car. 
&  P.  453. 

Implied  Liability. 

SEC.  19.  But  where  I  make  a  verbal  contract  with  you 
to  sell  me  land,  and  I  enter  upon  it  and  improve  it,  and  you 
afterwards  refuse  to  convey,  whereby  the  contract  is  re 
scinded,  I  cannot  recover  for  my  labor  expended  upon  the 
land.  Nor  can  I  if  I  enter  upon  another's  land  without  his 
csnsent  or  color  of  right,  and  clear  and  improve  it.  Here, 
as  there  is  neither  a  legal  or  moral  obligation  to  pay  me  for 
my  labor,  a  promise  subsequently  made  to  pay  me  for  it 
would  be  without  consideration  and  void.  5  Johns.  272. 

SEC.  20.  An  action  may  be  maintained  for  professional 
services  performed  at  the  defendant's  request,  by  an  attor 
ney  or  counselor  at  law,  a  clergyman,  a  physician  or  sur 
geon,  whether  he  be  licensed  or  not.  Formerly  the  fees  of 
an  attorney  were  regulated  by  statute,  but  the  measure  of 
their  compensation  is  now  left  to  the  agreement,  express  or 


WORK  AND  LABOR.  191 

implied,  between  them  and  their  clients.  26  Wend.  451 ; 
10  Johns.  244. 

SEC.  21.  A  parent  or  master  is  not  liable  for  services 
performed  for  his  child  or  indented  apprentice  without  his 
knowledge,  unless  in  a  case  requiring  immediate  assistance  ; 
as  where  the  child  or  apprentice  was  suddenly  taken  sick. 
10  Johns.  249. 

SEC.  22.  A  master  is  not,  however,  liable  for  necessaries 
or  services  performed  for  his  hired  servant  during  his  sick 
ness,  unless  at  his  special  request.  2  Esp.  739. 

SEC.  23.  An  action  may  be  maintained  against  overseers 
of  the  poor  for  medical  attendance  upon  a  pauper,  for  whom 
they  are  bound  to  provide,  if  furnished  at  their  request,  or 
when  not  furnished  with  their  knowledge,  if  they  afterwards 
expressly  promise  to  pay  for  it.  But  not  otherwise.  10 
Johns.  249. 

SEC.  24.  It  has  been  remarked  that  where  there  is  an 
express  contract  to  perform  a  particular  piece  of  work,  or  to 
labor  for  a  certain  price,  so  long  as  it  remains  unchanged, 
the  contractor  can  only  recover  upoa  a  performance  of  its 
terms.  In  actions  upon  all  such  contracts,  and  also  in  all 
actions  for  services,  whether  common,  mechanical  or  pro 
fessional,  and  whether  to  be  performed  at  a  fixed  price  or 
not,  the  defendant  may,  by  way  of  recoupment,  mitigate  the 
damage  or  defeat  the  action  altogether,  according  to  the 
justice  of  the  case,  by  showing  that  they  were  done  unskill- 
fully,  or  were  worth  less  than  the  plaintiff's  claim,  or  worth 
nothing.  7  East,  479. 

SEC.  25.  So,  where  an  auctioneer  is  guilty  of  negligence, 
whereby  his  sale  is  void,  he  cannot  recover  for  his  services. 
3  Camp.  451. 

SEC.  26.  An  attorney  cannot  recover  against  his  client 
for  his  services  in  an  action  where  the  judgment  obtained 
by  him  is  set  aside  for  irregularity;  nor  for  opposing  a  suc 
cessful  motion  to  set  aside  his  proceedings;  nor  for  money 
paid  to  satisfy  the  costs  of  a  judgment  of  discontinuance 
obtained  against  his  client  in  consequence  of  his  negligence 
or  ignorance.  But  proof  that  a  judgment,  as  in  case  of 
nonsuit,  was  obtained  against  the  client,  is  npt  of  itself 
evidence  of  his  negligence.  The  negligence  must  be  gross. 


192  JUSTICES'  TREATISE. 

If  he  acts  in  good  faith,  and  to  the  best  of  his  skill,  and 
with  a  moderate  degree  of  attention,  he  is  not  answerable. 
Nor  is  he  answerable  for  an  error  or  mistake  on  a  point  of 
law  in  regard  to  which  a  reasonable  doubt  may  be  enter 
tained,  or  on  a  nice  point  of  practice.  3  Camp.  17-19. 

SEC.  27.  The  law  compels  no  one  to  pay  for  services 
voluntarily  performed  for  him,  however  beneficial  to  him, 
unless  upon  his  express  or  implied  request.  This  rule  has 
been  held  in  the  following  case :  J,  owned  a  stubble  field  in 
which  B  had  a  stack  of  wheat,  which  he  had  promised  to 
remove  in  season  for  preparing  the  field  for  a  fall  crop. 
The  time  to  remove  it  having  arrived,  J  sent  a  request  to  B, 
which,  in  his  absence,  was  delivered  to  his  family,  that  the 
stack  should  be  removed,  as  he  wished  next  day  to  burn 
the  stubble.  The  sons  of  B  answered  that  they  would 
remove  it  by  ten  o'clock  next  morning.  After  waiting  until 
that  hour,  J  set  fire  to  the  stubble  in  a  remote  part  of  the 
field,  and  finding  the  fire  spreading  rapidly  and  threatening 
to  burn  the  stack,  J  set  to  work  and  removed  it  to  a  place 
of  safety.  The  court  held,  that  no  action  would  lie  for  the 
service.  20  Johns.  28. 

SEC.  28.  An  exception  to  this  rule  is  made  in  the  case 
of  goods  and  vessel  lost  or  abandoned  in  distress  at  sea, 
which  was  saved  by  other  persons.  Here  the  person  who 
by  his  labor  saves  them,  may  claim  a  reasonable  compensa 
tion  for  his  services,  and  may  also  retain  the  possession  of 
them  until  paid.  1  Ld.  Raym.  393;  Abbott  on  Ship.  356. 

SEC.  29.  Monthly  Salary.  —  Where  a  party  employed 
receives  a  regular  specific  monthly  salary  for  his  services, 
the  presumption  of  law  is,  that  all  services  rendered  by 
him  for  his  employer  during  that  period,  which  are  of 
nearly  a  similar  nature  to  those  of  his  regular  duties,  are 
paid  for  by  his  salary.  And  to  overcome  this  presumption 
he  must  show  an  express  agreement  for  extra  pay,  other 
wise  he  cannot  recover.  Cany  vs.  Halleck,  9  Cal.  198. 

SEC.  30.  Implied  Contract. — In  a  suit  by  a  female  against 
two  partners  in  a  ranch,  for  services  as  servant  to  the  farm. 
Under  an  implied  contract,  as  on  a  quantum  meruit,  proof 
that  plaintiff  is  the  wife  of  one  defendant  is  good  under  the 
general  issue,  as  showing  that  there  was  no  implied  con- 


WOKE  AND  LABOR.  193 

tract  to  pay  for  the  services.  Angulo  vs.  Sunol,  14  Cal. 
402. 

SEC.  31.  For  domestic  services  rendered  in  such  case  by 
the  wife  of  one  partner,  all  living  in  the  same  house,  the  law 
does  not  imply  a  contract  to  pay  for  the  service.  14  Cal. 
402. 

SEC.  32.  The  presumption  that  the  person  enjoyed  the 
benefit  of  services,  is  bound  to  pay  therefor  what  they  are 
reasonably  worth,  may  be  rebutted  by  proof  of  a  special 
agreement  to  pay  a  fixed  amount,  or  in  a  particular  rnanner, 
or  by  proof  that  the  services  were  intended  to  be  gratuitous. 
In  an  action  for  personal  services,  defendants  asked  an  in 
struction  to  the  effect,  that  if  the  plaintiff  served  the  defend 
ant  upon  an  understanding  that  he  was  to  have  only  his  liv 
ing — board,  washing,  lodging,  etc. — as  a  compensation,  and 
that  he  had  received  these,  then  defendant  should  recover, 
which  instruction  the  court  refused :  Held,  that  the  instruc 
tion  was  proper,  and  that  for  the  error  in  refusing  it  the 
judgment  for  plaintiff  must  be  reversed.  Moulin  vs.  Colum- 
bet,  22  Cal.  508. 

Damages. 

SEC.  33.  Where  one  is  employed  by  another  under  a  con- 
tract,  at  a  stated  salary,  payable  monthly  or  at  a  stated  time, 
to  act  as  his  clerk,  or  transact  business  for  him,  and  the  em 
ploye  neglects  the  business,  the  employer  is  not  preclu 
ded  from  maintaining  an  action  for  damages  for  this  neglect, 
by  payment  in  full  of  the  employees  wages,  or  by  allowing 
the  employ^  to  sue  and  recover  judgment,  by  refraining  from 
interposing  any  counter  claim  for  a  breach  of  the  employe's 
contract.  Stoddard  vs.  Treadwell,  26  Cal.  294. 

SEC.  34.  Where  the  defendants,  partners,  employed  plaint 
iff,  on  an  agreement  that  a  portion  of  his  wages  should  be 
retained  by  defendants  until  a  certain  sum  had  accumulated, 
when  plaintiff  should  be  admitted  as  a  partner;  and  defend 
ants  subsequently,  but  before  the  sum  had  accumulated, 
dissolved  partnership:  Held,  that  the  defendants,  by  their 
acts  having  violated  the  special  contract  by  dissolving  their 
copartnership,  the  plaintiff  was  at  liberty  to  sue  on  the 
special  contract  for  damages,  or  declare  for  the  value  of  his 
work  and  labor.  Adams  vs.  Pugh,  7  Cal.  150. 
25 


194  JUSTICES'  TEEATISE. 

CHAPTER   XIX. 
ABATEMENT. 


DEFINITION 1-2 

JURISDICTION,  CAUSE  OF 3 

ANOTHEE  ACTION  PENDING.  . , 


SECS. 
MlSNOMEK 12-14 

MlSJOINDEK  AND  NONJOINDER.  .   15-16 
DEATH,  ABATEMENT  BY 17 


Definition. 

SECTION  1.  Abatement,  Plea  of,  in  Justices'  Courts. — The 
pleas  in  abatement  in  justices'  courts  are  usually  to  the  ju 
risdiction,  or  that  the  defendants  are  not  set  forth  by  their 
proper  names,  or  that  the  process  which  has  been  issued 
has  not  been  issued  and  served  as  the  statute  directs.  In 
deciding  upon  such  pleas  as  these,  if  the  facts  constituting 
the  plea  in  abatement  be  found  true,  the  plea  should  be  ad 
mitted  by  the  justice.  The  opposite  course  would  only  sub 
ject  the  parties  to  costs,  and  determine  nothing ;  for  by  cer- 
tiorari  the  proceedings  would  be  taken  to  a  higher  court,  and 
on  proof  of  any  of  the  allegations  made,  the  proceedings 
would  be  set  aside. 

SEC.  2.  Abatement  in  Pleading. — Abatement  in  pleading 
is  the  overthrow  of  an  action  in  consequence  of  some  error 
committed  in  bringing  or  conducting  it,  when  the  plaintiff 
is  not  forever  barred  from  bringing  another  action.  1  Chit. 
PI.  434,  445. 

Jurisdiction. 

SEC.  3.  Wliento  the  Jurisdiction. — Jurisdiction  is  a  power 
constitutionally  conferred  upon  a  judge  or  magistrate  to  take 
cognizance  of  and  decide  causes  according  to  law,  and  to 
carry  his  sentence  into  execution.  Bouv.  Law  Diet.  When 
therefore  the  power  is  wanting,  either  as  it  relates  to  the 
subject  matter  of  the  action  or  the  remedy  sought,  the  plea 
in  abatement  applies.  Nor  can  the  absence  of  jurisdiction 
be  remedied  by  agreement ;  it  is  the  law  which  gives  it,  and 
not  the  consent  of  parties.  1  Const.  R.  478.  Where  there 
is  an  entire  want  of  jurisdiction  of  the  subject  matter  in  the 
court,  it  is  never  too  late  to  object  to  the  jurisdiction.  1 
Ash.  168  ;  2  Cow.  Treat.  668. 


ABATEMENT.  195 

Another  Action  Pending. 

SEC.  4.  Another  Action  Pending. — A  plea  to  abate  an  ac 
tion  by  reason  of  another  action  pending  is  not  good,  unless 
it  show  that  the  pending  action  was  brought  for  the  same 
cause  as  the  one  in  which  the  plea  is  interposed.  Calaveras 
Co.  vs.  Brochway,  30  Cal.  325. 

SEC.  5.  The  Parties  Must  be  the  Same. — An  action  cannot 
be  abated  by  a  former  action  pending  for  the  same  cause 
unless  the  parties  are  the  same.  30  Cal.  325. 

SEC.  6.  Pendency  of  Prior  Action. — To  support  a  plea  in 
abatement  founded  on  the  pendency  of  a  prior  action,  it  is 
necessary  to  show  that  process  was  issued  in  such  action. 
Prim  vs.  Gray,  10  Cal.  522. 

SEC.  7.  The  Pendency  of  One  Suit  may  be  Pleaded  in 
Abatement  of  Another. — A  defendant  cannot  be  harassed 
with  several  suits  for  the  same  matter  at  the  same  time.  In 
such  a  case,  the  pendency  of  one  suit  may  be  plead  in  abate 
ment  of  the  other.  Seligman  vs.  Kalkman,  8  Cal.  216. 

SEC.  8.  When  the  Former  Case  is  Defective. — A  plea  in 
abatement  of  a  former  suit  pending  is  no  bar  to  an  ac 
tion  when  the  complaint  in  that  case  is  so  defective  that 
a  judgment  rendered  thereon  would  be  a  nullity.  Rey 
nolds  vs.  Harris,  9  Cal.  341. 

SEC.  9.  What  must  be  Shown  in  an  Answer  in  Abatement. 
— In  an  action  to  recover  land,  an  answer  of  another  action 
pending,  for  the  same  cause,  must  show  that  the  same  title, 
the  same  injury  and  the  same  subject  matter,  are  in  contro 
versy  in  both  actions.  Larco  vs.  Clements,  36  Cal.  132. 

SEC.  10.  Answers  must  be  Strictly  Construed. — Answers 
in  abatement  of  an  action  are  to  be  strictly  construed.  36 
Cal.  132. 

SEC.  11.  Judgment  on  Issue  in  Abatement. — If  an  answer 
in  abatement  is  found  true,  the  judgment  should  not  be  in 
bar,  but  that  the  suit  abate.  36  Cal.  132. 

Misnomer. 

SEC.  12.  Misnomer. — The  misnomer  of  one  of  two  de 
fendants,  when  sued  as  a  firm,  as  to  his  Christian  name,  if 
material  at  all,  must  be  taken  advantage  of  by  a  plea  in 
abatement.  8  W.  &  S.  485. 


196  JUSTICES'  TKEATISE. 

SEC.  13.  A  Misnomer  of  Plaintiff — A  Corporation. — A 
misnomer  of  the  plaintiff  in  an  action  by  a  corporation, 
must  be  taken  advantage  of  by  a  plea  in  abatement.  2  W. 
&  8.  156. 

SEC.  14.  An  Initial  Letter  between  the  Christian  and  Sur 
name  is  no  part  of  the  Name. — An  initial  letter,  between  the 
Christian  and  surname  of  the  party,  is  no  part  of  the  name, 
and  the  omission  of  it  is  not  a  misnomer  or  a  variance.  4 
W.  &  8.  329.  ' 

Misjoinder  and  Nonjoinder. 

SEC.  15.  Misjoinder  of  Parties. — An  answer  will  not  be 
treated  as  a  plea  in  abatement  for  a  misjoinder  of  parties 
defendant,  after  the  testimony  has  disclosed  a  proper  cause 
of  action  against  them.  Warner  vs.  Wilson,  4  Cql.  313 ; 
Dunn  vs.  Tozer,  10  Cal.  170. 

SEC.  .16.  Where  Part  Owner  Brings  an  Action. — "Where  a 
part  owner  brings  an  action  in  form  ex  delicto,  and  the  ob 
jection  is  not  made  by  plea  in  abatement,  the  other  part 
owner  may  afterwards  sue  alone.  Whitney  vs.  Stark,  8 
Cal.  516. 

Death,  Abatement  by. 

SEC.  17.  An  action  shall  not  abate  by  death  or  other  dis 
ability  of  a  person,  or  by  transfer  of  any  interest  therein,  if 
the  cause  of  action  survive  or  continue.  In  case  of  the  death 
or  other  disability  of  the  party  the  court,  on  motion,  may 
allow  the  action  to  be  continued  by  or  against  his  repre 
sentatives  or  successor  in  interest.  In  case  of  any  other 
transfer  of  interest  the  action  may  be  continued  in  the  name 
of  the  original  party ;  or,  the  court  may  allow  the  person  to 
whom  the  transfer  is  made  to  be  substituted  in  the  action. 
Practice  Act,  Sec.  16. 


CHAPTER     XX. 
ABANDONMENT. 

"What  Constitutes. 

SECTION  1.  Abandonment  is  the  relinquishment  of  prop 
erty  by  the  possessor  or  owner,  of  all  right,  title  and  inter 
est,  by  him  held  thereto,  and  they  belong  to  the  first  occu 
pant  or  possessor  thereafter.  Bouv.  Inst.  195. 


ACKNOWLEDGMENTS.  197 

SEC.  2.  To  entitle  the  finder  or  subsequent  possessor  to 
such  property  the  former  owner  must  have  wholly  aban 
doned  his  title  thereto,  and  even  the  acquisition  by  'him 
who  finds  such  property  does  not  make  it  his,  unless  he 
takes  possession  of  it  by  some  outward  act  signifying  an 
intention  to  possess  it.  The  necessity  of  this  outward  act 
is  founded  on  the  principle  that  a  will  or  intention  cannot 
have  legal  effect  without  an  outward  act  declaring  that  in 
tention  ;  and,  on  the  other  hand,  no  man  can  be  said  to  have 
the  dominion  over  a  thing  which  he  has  no  intention  of 
possessing  as  his.  Therefore,  a  man  cannot  deprive  others 
of  taking  possession  of  vacant  property  by  merely  consider 
ing  it  as  his  without  actually  appropriating  it  to  himself. 
The  outward  act  or  possession  need  not  be  manual ;  for  any 
kind  of  possession,  as  simply  having  the  custody  of  it,  is  in 
general  a  sufficient  appropriation.  The  exceptions  to  the 
above  rule  are  usually  created  by  statute.  Bouv.  Inst.  195. 

See  MINES  AND  MINING  CLAIMS,  Ch.  LXVI. 


CHAPTER    XXI. 

ACKNOWLEDGMENTS. 

SECTION  1.  Acknowledgments  of  the  execution  of  any 
instrument  whereby  any  real  estate  is  conveyed  or  may  be 
affected,  is  provided  for  by  the  following  enactments : 

Section  1.  Section  four  of  an  act  entitled  an  act  con 
cerning  conveyances,  passed  April  sixteenth,  eighteen  hun 
dred  and  fifty,  is  hereby  amended  so  as  to  read  as  follows : 
Sec.  4.  The  proof  or  acknowledgment  of  every  instrument 
whereby  any  real  estate  is  conveyed  or  may  be  affected, 
shall  be  taken  by  some  one  of  the  following  officers  : 

1st.  If  acknowledged  or  proved  within  this  state,  by  some 
judge  or  clerk  of  a  court  having  a  seal,  or  some  notary  pub 
lic  or  county  recorder,  or  by  a  justice  of  the  peace  of  the 
proper  county  where  the  conveyance  is  executed,  and  to  be 
recorded  only  in  such  county. 

2d.  If  acknowledged  or  proved  without  the  state,  and 
within  any  state  or  territory  in  the  United  States,  by  some 


198  JUSTICES'  TREATISE. 

judge  or  clerk  of  any  court  of  the  United  States,  or  of  any 
state  or  territory  having  a  seal,  or  by  a  commissioner  ap 
pointed  by  the  government  of  this  state  for  that  purpose,  or 
by  any  notary  public,  commissioner  of  deeds  or  justice  of 
the  peace,  authorized  to  take  and  certify  the  acknowledg 
ment  or  proof  of  deeds  to  be  used  in  his  state  or  territory : 
provided,  however,  that  where  such  proof  or  acknowledg 
ment  shall  be  taken  and  certified  by  any  such  notary  public 
or  commissioner  of  deeds  other  than  commissioners  of  this 
state,  a  certificate  of  the  secretary  of  state  or  territory 
shall  also  be  affixed  to  the  instrument  so  certified,  to  the 
effect  that  such  notary  public  or  commissioner  of  deeds 
other  than  commissioners  of  this  state  at  the  time  of  taking 
such  acknowledgment  or  proof  was  such  officer,  that  the 
signature  affixed  to  such  certificate  is  his  genuine  signature, 
and  that  he  is  authorized  by  law  to  take  the  acknowledg 
ment  of  deeds  within  the  state  or  territory  or  county  in 
which  he  maybe  acting;  and  where  such  proof  or  acknowl 
edgment  shall  be  taken  and  certified  by  a  justice  of  the 
peace,  a  certificate  of  the  county  clerk  of  the  county  in  which 
such  justice  resides,  or  clerk  of  a  court  of  record,  shall  also 
be  affixed  to  the  instrument  so  certified  and  to  the  like 
effect. 

3d.  If  acknowledged  or  proved  without  the  United  States, 
by  some  judge  or  clerk  of  any  court  of  any  state,  kingdom 
or  empire,  having  a  seal,  or  any  notary  public  therein,  or 
any  minister,  commissioner  or  consul,  of  the  United  States, 
appointed  to  reside  therein :  provided,  however,  that  where 
such  proof  or  acknowledgment  shall  be  taken  and  cer 
tified  by  any  such  judge  or  clerk  of  court,  or  any  notary 
public  without  the  United  States,  the  same  shall  be  ac 
companied  by  the  certificate  of  a  minister  or  consul  of  the 
United  States  resident  in  such  state,  kingdom  or  empire, 
to  the  effect  that  such  person  was  at  the  date  of  such  proof 
or  acknowledgment  such  officer,  that  the  signature  or  seal, 
or  both  such  signature  and  seal,  of  such  officer  is  genuine, 
and  that  such  officer  is  authorized  by  law  to  take  the  proof 
or  acknowledgment  [as  the  case  may  be]  of  deeds  where  he 
may  be  acting.  When  any  of  the  officers  above-mentioned 
are  authorized  by  law  to  appoint  a  deputy,  such  acknowl- 


ACKNOWLEDGMENTS.  199 

edgment  or  proof  may  be  taken  by  such  deputy  in  the  name 
of  his  principal. 

Sec.  2.  All  acknowledgments  or  proofs  heretofore  taken 
of  any  instrument  authorized  by  law  to  be  recorded,  ac 
knowledged  or  proven  and  certified,  or  which  may  be  cer 
tified  in  the  manner  herein-above  provided,  the  record 
thereof  shall  be  valid  and  of  the  like  force  and  effect  as  if 
acknowledged  or  proven  before  the  officer,  and  certified  to 
in  the  manner  heretofore  required  by  law :  provided,  that 
nothing  in  this  act  shall  be  so  construed  as  to  affect  in  any 
manner  the  rights  of  any  subsequent  purchaser  in  good 
faith.  Pub.  Laws,  1866,  429. 

SEC.  2.  Thus  it  will  be  perceived,  from  the  foregoing 
statute,  that  justices  of  the  peace  may  take  acknowledg 
ments,  when  the  conveyance  is  executed,  and  is  to  be 
recorded  in  the  county  in  which  he  holds  his  office.  The 
nineteenth  section  of  the  statute  concerning  conveyances 
empowers  a  married  woman  to  convey  her  real  estate  ;  but 
such  conveyance  must  be  executed  and  acknowledged  by 
herself  and  husband.  And  if  the  conveyance  be  executed 
and  is  to  be  recorded  in  the  county  where  the  justice  of  the 
peace  exercises  the  duties  of  his  office,  he  may  take  and 
certify  their  acknowledgments.  The  twenty-second  section 
of  said  statute  provides  that  the  acknowledgment  of  a  mar 
ried  women  shall  not  be  taken  unless  she  shall  be  person 
ally  known  to  the  officer  taking  the  same  to  be  the  person 
whose  name  is  subscribed  to  such  conveyance  as  a  party 
thereto,  or  shall  be  proved  to  be  such  by  a  credible  witness; 
nor  unless  such  married  woman  shall  be  made  acquainted 
with  the  contents  of  such  conveyance,  and  shall  acknowl 
edge,  on  an  examination  apart  from  and  without  the  hear 
ing  of  her  husband,  that  she  executed  the  same  freely  and 
voluntarily,  without  fear  or  compulsion  or  undue  influence 
of  her  husband,  and  that  she  does  not  wish  to  retract  the 
execution  of  the  same. 

SEC.  3.     The  following  are  forms  of  acknowledgments  : 

FOKMS. 

State  of  California,  [ 

County  of  J  88> 

On  this day  of  ,  A.D.  one  thousand  eight  hundred  and 


200  JUSTICES'  TREATISE. 

seventy  .  .  ,  personally  appeared  before  me,  ........  ,  a  justice  of  the  peace, 

in  and  for  the  said  county,  ........  and  ........  ,  his  wife,  whose  names  are 

subscribed  to  the  annexed  instrument  as  parties  thereto,  personally  known  to 
me  to  be  the  same  persons  described  in  and  who  executed  the  said  annexed 
instrument,  as  parties  thereto,  who  each  of  them  acknowledged  to  me  that  they 
each  of  them  respectively  executed  the  same  freely  and  voluntarily,  and  for 
the  uses  and  purposes  therein  mentioned.    And  the  said  ........  ,  wife  of  the 

said  ........  ,  having  been  by  me  first  made  acquainted  with  the  contents  of 

said  instrument,  acknowledged  to  me  on  examination,  apart  from  and  with 
out  the  hearing  of  her  husband,  that  she  executed  the  same  freely  and  volun 
tarily,  without  fear  or  compulsion,  or  undue  influence  of  her  husband,  and 
that  she  does  not  wish  to  retract  the  execution  of  the  same. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  my  private 
seal  (having  no  seal  of  office)  the  day  and  year  in  this  certificate  first  above 
written. 


Justice  of  the  peace. 
State  of  California,  | 

County  of  ............       f  Sk 

On  this  ........  day  of  ..........  A.D.  one  thousand  eight  hundred  and 

seventy  .  .  ,  personally  appeared  before  me,  ..........  ,  a  justice  of  the  peace 

in  and  for  the  said  ........  county,  .....  .....  personally  known  to  me  to  be 

the  same  person  whose  name  is  subscribed  to  the  annexed  instrument  as  a 
witness  thereto,  who  being  by  me  duly  sworn,  deposed  and  said,  that  he 
resides  in  ............  ,  that  he  was  present  and  saw  ..........  ,  known  to 

him  to  be  the  same  person  described  in  and  who  executed  the  annexed 
instrument,  as  a  party  thereto,  sign,  seal  and  deliver,  the  same  ;  and  that  the 
said  ..........  acknowledged  in  the  presence  of  said  affiant  that  .  .  executed 

the  same  freely  and  voluntarily,  and  for  the  uses  and  purposes  therein  men 
tioned,  and  that  he  the  said  affiant  subscribed  his  name  to  said  instrument 
as  a  witness  thereof. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  my  private 
seal  (having  no  seal  of  office)  the  day  and  year  in  this  certificate  first  above 
•written. 

............  ,       [M.] 

Justice  of  the  peace. 
State  of  California,  j 

County  of  ............       j  Si 

On  this  ........  day  of  ..........  ,  A.D.  one  thousand  eight  hundred  and 

seventy  .  .  ,  personally  appeared  before  me,  ..........  ,  a  justice  of  the  peace 

in  and  for  the  said  county,  .  .  .«.  ........  whose  name  ....  subscribed  to  the 

annexed  instrument  as  ....  part  ....  thereto,  personally  known  to  me  to  be 

the  same  person  ....  described  in  and  who  executed  the  said  annexed  instru 

ment,  as  part  ....  thereto,  who  ..........  acknowledged  to  me  that  ...... 

executed  the  same  freely  and  voluntarily,  and  for  the  uses  and  purposes 
therein  mentioned. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  my  private 
seal  (having  no  seal  of  office)  the  day  and  year  in  this  certificate  first  above 
written. 


Justice  of  the  peace. 


ACKNOWLEDGMENTS.  201 


State  of  California, 

County  of  ............ 

On  this  ......  day  of  ............  ,  A.D.  one  thousand  eight  hundred  and 

seventy  .  .  ,  personally  appeared  before  me,  ..........  ,  a  justice  of  the  peace 

in  and  for  the  said  county,  ..........  personally  known  to  me  to  be  the 

same  person  described  in  and  -who  executed  by  power  of  attorney  .......... 

the  annexed  instrument  as  the  attorney  in  fact  of  ..........  named  in  the 

annexed  instrument,  as  a  party  thereto,  and  therein  described  as  the  party 
executing  the  same  by  his  said  attorney  ;  and  the  said  ............  acknowl 

edged  to  me  that  he  executed  the  same  freely  and  voluntarily,  as,  and  for 
the  act  and  deed  of  the  said  ............  ,  and  for  the  uses  and  purposes 

therein  mentioned. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  my  private 
seal  (having  no  seal  of  office)  the  day  and  year  in  this  certificate  first  above 
written. 


Justice  of  the  peace. 

SEC.  4.  An  acknowledgment  of  a  conveyance  which  does 
not  state  that  the  person  making  the  acknowledgment  is 
either  personally  known,  or  proved  to  the  officer  to  be  the 
person  who  executed  it,  does  not  entitle  the  instrument  to 
be  recorded  ;  and  if  recorded  its  record  imparts  no  notice. 
7  Col.  161,  162. 

SEC.  5.  "Where  the  officer  taking  an  acknowledgment  cer 
tifies  that  the  parties  "were  known  to  him,  "and  omits  the 
word  "personally,"  it  is  valid.  8  Cal.  87. 

SEC.  6.  The  certificate  of  acknowledgment  of  a  married 
woman  to  a  deed  must  state  that  the  contents  of  the  deed 
were  explained  to  her,  otherwise  it  is  defective,  and  will  not 
pass  her  interest  in  the  estate.  10  Cal.  436. 

SEC.  7.  Under  our  law,  no  presumption  of  knowledge, 
on  the  part  of  a  married  woman,  of  the  contents  of  a  deed 
arises  from  the  fact  of  executing  it.  10  Cal.  436. 

SEC.  8.  A  justice  of  the  peace  can  take  the  acknowledg 
ment  of  the  wife  to  a  deed  of  the  homestead.  13  Cal.  81. 

SEC.  9.     The  recorder  of  the  city  of   San  Francisco  is 
authorized  by  law  to  take  acknowledgments  of  mortgages 
and  conveyances.     8  Cal.  87. 
26 


202 


JUSTICES    TREATISE. 


CHAPTER     XXII. 

ACTIONS  AGAINST  STEAMEES,  VESSELS  AND 
BOATS. 


SECS. 
JUBISDICTION  OF  THE    CotTBTS.  .  1 

FOB  WHAT  STEAMEBS,  VESSELS 

AND  BOATS  LIABLE 2-3 

ACTIONS  MAT  BE  BBOUGHT  Di- 
BECTLY  AGAINST  STEAMEKS, 

VESSELS  AND  BOATS 4 

THE  COMPLAINT 5 

SEBVICE  OF  SUMMONS 6-7 

THE  LIEN 8 

ATTACHMENT  MAY  BE  ISSUED.  . .         10 
THE  UNDEBTAKING  BEFOBE  IS 
SUANCE  OF  ATTACHMENT.  . .        10 
FOBM    OF    THE    UNDEBTAKING. 

See  ATTACHMENT. 
CONTENTS  OF  WBIT  OF  ATTACH 
MENT 11 

FOBM  OF  THE  WBIT.     See  AT 
TACHMENT. 
FOBM  or  UNDEETAKING  TO  PEE- 


SECS. 

VENT  ATTACHMENT.  See  AT 
TACHMENT. 

DUTY  OF  THE  CONSTABLE  UPON 

DELIVEEY  OF  THE  WEIT  ...  12 

RIGHTS  OF  THE  OWNEB,  MASTEE, 

AGENT  OB  CONSIGNEE 13 

How  PBOCEEDINGS  TO  BE  CON 
DUCTED  14 

DlSCHABGE  OF  ATTACHMENT  AF- 

TEB  APPEABANCE 15 

FOBM  OF  DISCHABGE.  See  AT 
TACHMENT. 

SALE  UNDEE  EXECUTION 16 

CLAIMS  FOB  WAGES 17-18 

CONTENTS  OF  NOTICE  OF  SALE  . .         19 

FOBM  OF  NOTICE.  See  ATTACH 
MENT. 

APPEALS..  20 


Jurisdiction  of  the  Courts. 

SECTION  1.  The  sixth  chapter  of  the  practice  act,  provid 
ing  for  actions  against  steamers,  vessels  and  boats,  confers 
upon  the  district  courts  admiralty  jurisdiction  pro  tanto,  and 
the  proceedings  in  such  actions  must  be  governed  by  the 
principles  and  forms  of  admiralty  courts,  except  where  oth 
erwise  controlled  or  directed  by  the  act.  The  rule  in  regard 
to  actions  in  rem,  in  both  admiralty  and  common-law  courts, 
gives  exclusive  jurisdiction,  in  a  given  case,  to  that  tribunal 
which  has  acquired  it  by  a  judicial  seizure  of  the  thing ;  and 
such  seizure  has  always  been  held  essential  to  a  proceeding 
in  rem.  Our  statute,  however,  alters  that  rule.  It  makes 
the  service  of  process  upon  a  person  standing  in  a  particu 
lar  relation  to  the  thing  equivalent  to  its  seizure,  for  the 
purpose  of  conferring  jurisdiction ;  and  it  necessarily  fol 
lows  that  jurisdiction  in  rem  may  exist  in  several  courts  at 
the  same  time  and  over  the  same  subject.  There  need, 


ACTIONS  AGAINST  STEAMERS,   VESSELS  AND  BOATS.        203 

however,  be  no  conflict  of  jurisdiction.  The  court  whose 
mesne  or  final  process  has  made  first  actual  seizure  of  the 
thing  must  have  exclusive  power  over  its  disposal  and  the 
distribution  of  the  fund  arising  therefrom.  The  judgments 
of  other  courts,  where  properly  authenticated,  and  filed  in 
the  court  having  custody  of  the  fund,  must  be  regarded  as 
complete  adjudication  of  the  subject  matter  of  litigation 
which  they  disclose,  and  entitled  to  distribution  according 
to  their  respective  merits.  This  construction  is  totally  in 
dependent  of  the  provisions  of  section  three  hundred  and 
twenty-nine  of  the  act.  That  is  intended  to  provide  a  sum 
mary  mode  of  determining  claims  of  a  particular  class  which 
have  not  been  adjudicated  by  a  competent  tribunal.  Aver- 
ill  vs.  Steamer  Hartford,  2  Cal.  309,  310. 

For  What  Steamers,  Vessels  and  Boats,  Liable. 

SEC.  2.     All  steamers,  vessels  and  boats,  shall  be  liable : 

1st.  For  services  rendered  on  board  at  the  request  of,  or 
on  contract  with,  their  respective  owners,  masters,  agents 
or  consignees. 

2d.  For  supplies  furnished  for  their  use,  at  the  request 
of  their  respective  owners,  masters,  agents  or  consignees. 

3d.  For  materials  furnished  in  their  construction,  repair 
or  equipment. 

4th.  For  their  wharfage  and  anchorage  within  this  state. 

5th.  For  non-performance  or  mal-performance  of  any  con 
tract  for  the  transportation  of  persons  or  property  made  by 
their  respective  owners,  masters,  agents  or  consignees. 

6th.  For  injuries  committed  by  them  to  persons  or  prop 
erty.  The  said  several  causes  of  action  shall  constitute  liens 
upon  all  steamers,  vessels  and  boats,  and  have  priority 
in  their  order  herein  enumerated,  and  shall  have  prefer 
ence  over  all  other  demands :  provided,  such  lien  shall  only 
continue  in  force  for  the  period  of  one  year  from  the  time 
the  cause  of  action  accrued.  Gen.  Laws,  5255,  5464. 

SEC.  3.  A  contract,  under  the  foregoing  section,  for  the 
transportation  of  passengers  from  San  Francisco  to  New 
York,  is  an  entirely,  whether  the  entire  voyage  is  to  be  per 
formed  in  one  vessel  or  not;  and  a  breach  of  such  con 
tract  at  any  point,  as  leaving  the  passenger  on  the  Isthmus, 


204  JUSTICES'  TREATISE. 

renders  the  vessel  liable.  State  courts  have  jurisdiction  in 
such  cases.  Ordvs.  Steamer  Uncle  Sam,  13  Cal.  369;  War 
ner  and  Wife  vs.  Steamer  Uncle  Sam,  9  Cal.  697. 

Actions  May  be  Brought  Directly  Against  Steamers,  Vessels  and 

Boats. 

SEC.  4.  Actions  for  demands  arising  upon  any  of  the 
grounds  specified  in  the  preceding  section,  may  be  brought 
directly  against  such  steamers,  vessels  or  boats.  Gen.  Laics, 
5256,  5464. 

The  Complaint. 

SEC.  5.  The  complaint  shall  designate  the  steamer,  ves 
sel  6Y  boat,  by  name,  and  shall  be  verified  by  the  oath  of 
the  plaintiff,  or  some  one  on  his  behalf.  Gen.  Laws,  5257, 

5464. 

Service  of  Summons. 

SEC.  6.  The  summons  attached  to  a  certified  copy  of  the 
complaint,  may  be  served  on  the  master,  mate  or  any  per 
son,  having  charge  of  tjie  steamer,  vessel  or  boat,  against 
which  the  action  is  brought.  Gen.  Laivs,  5258,  5464. 

SEC.  7.  In  an  action  against  boats  and  vessels  under  the 
statute,  the  service  of  process  in  the  manner  prescribed  by 
statute,  is  equivalent  to  an  actual  seizure.  Meiggs  vs.  Scan- 
nell,  7  Cal.  405. 

The  Lien. 

SEC.  8.  It  is  not  necessary  that  the  vessel  should  be  at 
tached,  in  order  to  acquire  a  lien,  as  against  subsequent 
purchasers.  Meiggs  vs.  Scannell,  1  Cal.  405.  In  a  case  de 
cided  before  the  amendment  of  section  three  hundred  and 
seventeen,  the  sixth  subdivision  of  which  did  not  contain 
the  sentence  in  reference  to  liens,  the  supreme  court  say : 
' '  Under  the  statute,  the  lien  attaches  only  when  service  is 
had  in  the  suit."  Fisher  vs.  White  et  al.,  8  Cal.  418.  There 
is  nothing  in  our  statute  expressly  creating  a  lien ;  and, 
from  the  fact  that  the're  is  no  express  provision  to  this  effect, 
and  the  word  lien  is  studiously  omitted,  and  no  time  is  lim 
ited  within  which  proceedings  should  be  commenced,  and 
that  a  suit  may  be  brought  by  the  service  of  the  summons, 
without  attachment,  it  would  seem  to  have  been  the  inten 
tion  of  the  legislature  to  make  the  lien  attach  when  the  lia 
bility  was  incurred.  The  intention  of  the  act  was  to  give 


ACTIONS  AGAINST  STEAMERS,  VESSELS  AND  BOATS.   205 

I 

priority  to  the  most  diligent  creditor,  except  claims  for 
wages,  which  are  preferred  before  all  the  others  mentioned 
in  the  statute.  FisJier  vs.  White  et  al.,  8  Cal.  423. 

Attachment  may  be  Issued. 

SEC.  9.  The  plaintiff,  at  the  time  of  issuing  the  summons, 
or  at  any  time  afterwards,  may  have  the  steamer,  vessel  or 
boat,  against  which  the  action  is  brought,  with  its  tackle, 
apparel  and  furniture,  attached,  as  security  for  the  satisfac 
tion  of  any  judgment  that  may  be  recovered  therein.  Gen. 
Laws,  5259,  5464. 

The  Undertaking  before  Issuance  of  Attachment. 

SEC.  10.  The  justice  shall  issue  a  writ  of  attachment,  on 
the  application  of  the  plaintiff,  upon  receiving  a  written  un 
dertaking  on  behalf  of  the  plaintiff,  executed  by  two  or  more 
sufficient  sureties,  to  the  effect,  that  if  judgment  be  rendered 
in  favor  of  the  steamer,  vessel  or  boat,  as  the  case  may  be, 
he  will  pay  all  costs  and  damages  that  may  be  awarded 
against  him,  and  all  damages  which  may  be  sustained  by 
such  steamer,  vessel  or  boat,  from  the  attachment,  not  ex 
ceeding  the  sum  specified  in  the  undertaking,  which  shall 
in  no  case  be  less  than  five  hundred  dollars  when  the  attach 
ment  is  issued  against  a  steamer  or  vessel,  or  less  than -two 
hundred  dollars  when  issued  against  a  boat.  The  under 
taking  shall  be  accompanied  by  an  affidavit  of  each  of  the 
sureties,  that  he  is  a  resident  and  freeholder  or  householder 
of  the  county,  and  worth  double  the  amount  specified  in  the 
undertaking  over  and  above  all  his  just  debts  and  liabilities. 
The  justice  shall  file  the  undertaking  and  affidavits.  Gen. 
Laws,  5260,  5464. 

For  form  of  undertaking  see  ATTACHMENT. 

Contents  of  Writ  of  Attachment. 

SEC.  11.,  The  writ  shall  be  directed  to  any  constable  of 
the  county  within  which  the  steamer,  vessel  or  boat,  lies, 
and  direct  him  to  attach  such  steamer,  vessel  or  boat,  with 
its  tackle,  apparel  and  furniture,  and  keep  the  same  in  his 
custody  until  discharged  by  due  course  of  law ;  unless  the 
owner,  master,  agent  or  consignee,  thereof,  give  him  secu- 


206  JUSTICES'  TREATISE. 

rity  by  the  undertaking  of  at  least  two  sufficient  sureties,  in 
an  amount  sufficient  to  satisfy  the  demand  in  suit,  which 
shall  be  specified  in  the  writ,  besides  costs ;  in  which  case, 
to  take  such  undertaking.  Gen.  Laws,  5261,  5464. 

For  form  of  writ,  also  undertaking  to  prevent  attachment, 
see  ATTACHMENT. 

Duty  of  the  Constable  upon  the  Delivery  of  the  Writ  of  Attachment. 

SEC.  12.  The  constable  to  whom  the  writ  is  directed  and 
delivered  shall  execute  the  same  without  delay,  and  shall, 
unless  the  undertaking  mentioned  in  the  last  section  be 
given,  attach  and  keep  in  his  custody  the  steamer,  vessel  or 
boat,  named  therein,  with  its  tackle,  apparel  and  furniture, 
until  discharged  by  due  course  of  law;  but  the  constable 
shall  not  be  authorized  by  any  such  writ  to  interfere  with 
the  discharge  of  any  merchandise  on  board  of  such  steamer, 
vessel  or  boat,  nor  with  the  removal  of  any  trunks  or  other 
property  of  passengers,  or  of  the  captain,  mate,  seamen, 
steward,  cook  or  other  persons,  employed  on  board.  Gen. 
Laivs,  5262,  5464. 

Rights  of  the  Owner,   Master,  Agent  or  Consignee. 

SEC.  13.  The  owner,  master,  agent  or  consignee,  of  the 
steamer,  vessel  or  boat,  against  which  the  action  is  brought, 
may  appear  and  answer,  or  plead  to  the  action;  and  may  ex 
cept  to  the  sufficiency  of  the  sureties  on  the  undertaking 
filed  on  the  behalf  of  the  plaintiff,  and  may  require  sureties 
to  justify,  as  in  actions  against  individuals  upon  bail  or 
arrest.  Gen.  Laws,  5263,  5464. 

How  Proceedings  to  be  Conducted. 

SEC  14.  All  proceedings  in  actions  under  the  provisions 
of  this  chapter  shall  be  conducted  in  the  same  manner  as  in 
actions  against  individuals,  except  as  otherwise  herein  pro 
vided;  and  in  all  proceedings  subsequent  to  the  complaint, 
the  steamer,  vessel  or  boat,  may  be  designated  as  defend 
ant.  Gen.  Laws,  5264,  5464. 

Discharge  of  Attachment  after  Appearance. 
SEC.  15.     After  the  appearance  to  the  action,  of  the  owner, 
master,  agent  or  consignee,  the  attachment  may,  on  motion, 


ACTIONS  AGAINST  STEAMEES,  VESSELS  AND  BOATS.   207 

be  discharged,  in  the  same  manner  and  on  like  terms  and 
conditions  as    attachments  in  other  cases,    subject  to  the 
provisions  of  section  three  hundred  and  twenty-nine.     Gen. 
Laws,  5265,  5464. 
For  form  of  order  of  discharge  see  ATTACHMENT. 

Sale  Under  Execution. 

SEC.  16.  If  the  attachment  be  not  discharged,  and  a  judg 
ment  be  recovered  in  the  action  in  favor  of  the  plaintiff,  and 
an  execution  be  issued  thereon,  the  constable  shall  sell  at 
public  auction,  after  publication  of  notice  of  such  sale  for 
ten  days,  the  steamer,  vessel  or  boat,  with  its  tackle,  ap 
parel  and  furniture,  or  such  interest  therein  as  may  be 
necessary,  and  shall  apply  the  proceeds  of  sale,  as  follows : 

1st.  When  the  action  is  brought  for  demands  other  than  the 
wages  of  mariners,  boatmen  and  others,  employed  in  the 
service  of  the  steamer,  vessel  or  boat,  sold,  to  the  payment 
of  the  amount  of  such  wages,  as  specified  in  the  execution. 

2d.  To  the  payment  of  the  judgment  and  costs,  includ 
ing  his  fees. 

3d.  He  shall  pay  any  balance  remaining  to  the  owner, 
master,  agent  or  consignee,  who  may  have  appeared  in  the 
action;  or  if  there  be  no  appearance,  then  into  court,  sub 
ject  to  the  claim  of  any  party  or  parties  legally  entitled 
thereto.  Gen.  Laws,  5266,  5464. 

Claims  for  Wages. 

SEC.  17.  Any  mariner,  boatman  or  other  person,  em 
ployed  in  the  service  of  the  steamer,  vessel  or  boat,  at 
tached,  who  may  wish  to  assert  his  claim  for  wages  against 
the  same,  the  attachments  being  issued  for  other  demands 
than  such  wages,  shall  file  an  affidavit  of  his  claim,  setting 
forth  the  amount  and  the  particular  service  rendered,  with 
the  justice ;  and  thereafter  no  attachment  shall  be  dis 
charged  upon  filing  an  undertaking,  unless  the  amount  of 
such  claim,  or  the  amount  determined  as  provided  in  the 
next  section,  be  covered  thereby  in  addition  to  the  other 
requirements;  and  any  execution  issued  against  such 
steamer,  vessel  or  boat,  upon  judgment  recovered  there 
after,  shall  direct  the  application  of  the  proceeds  of  any 
sale  : 


208  JUSTICES'  TREATISE. 

1st.  To  the  payment  of  the  amount  of  such  claims  filed, 
or  the  amount  determined,  as  provided  in  the  next  section, 
which  the  justice  shall  insert  in  the  writ. 

2d.  To  the  payment  of  the  judgment  and  costs  and  con 
stable's  fees ;  and  shall  direct  the  payment  of  any  balance 
to  the  owner,  master,  agent  or  consignee,  who  may  have 
appeared  in  the  action ;  but  if  no  appearance  by  them  be 
made  therein,  it  shall  direct  a  deposit  of  the  balance  in 
court.  Gen.  Laws,  5267,  5464. 

SEC.  18.  If  the  claim  of  the  mariner,  boatman  or  other 
person,  filed  with  the  justice,  as  provided  in  the  last  sec 
tion,  be  not  contested  within  five  days  after  notice  of  the 
filing  thereof  by  the  owner,  master,  agent  or  consignee,  of 
the  steamer,  vessel  or  boat,  against  which  the  claim  is  filed, 
it  shall  be  deemed  admitted ;  but  if  contested,  the  justice 
shall  indorse  upon  the  affidavit  thereof  a  statement  that  it 
is  contested,  and  the  grounds  of  the  contest ;  and  shall  im 
mediately  thereafter  order  the  matter  to  a  single  referee  for 
his  determination,  or  he  may  hear  the  proofs  and  determine 
the  matter  himself.  The  judgment  of  the  justice  or  referee 
may  be  received  by  the  county  judge  either  in  term  or  vaca 
tion,  immediately  after  the  same  is  given,  and  the  judgment 
of  the  county  judge  shall  be  final.  On  the  review,  the 
county  judge  may  use  the  minutes  of  the  proofs  taken  by 
the  justice  or  referee,  or  may  take  the  proofs  anew.  Gen. 
Laws,  5268,  5464. 

Contents  of  Notice  of  Sale. 

SEC.  19.  The  Jiotice  of  sale  published  by  the  constable 
shall  contain  a  statement  of  the  measurement  and  tonnage 
of  the  steamer,  vessel  or  boat,  and  a  general  description  of 
her  condition.  Gen.  Laws,  5269,  5464. 

Appeals. 

SEC.  20.  From  orders  and  judgments  under  this  chap 
ter,  an  appeal  may  be  taken  by  the  owner,  master,  agent  or 
consignee,  on  the  same  terms  and  conditions  as  appeals  in 
actions  against  individuals.  Gen.  Laws,  5270,  5464. 


ADJOURNMENT.  209 

CHAPTER  XXIII. 
ADJOURNMENT. 


ADJOURNMENT      DISCRETIONABY 

WITH  THE  COCBT 1 

BY  CONSENT 2-4 

FOE  A  PERIOD  NOT  EXCEEDING 

TEN  DAYS 5-  7 

FOUB  MONTHS 8 

GBOTJNDS  FOB  ADJOUBNMENT.  . .  9-11 

AFFIDAVIT  FOB  ADJOURNMENT  . .  12 

FORM  OF  THE  AFFIDAVIT 13 

UNDERTAKING  ON  ADJOURNMENT 
FOR  A  PERIOD  NOT  EXCEED 
ING  FOUR  MONTHS 14 

FORM  or  THE  UNDERTAKING  . . ,  15 


SECS. 
ADJOURNMENT  WHEN  A  TBIAL  BY 

JUBY  is  DEMANDED 16 

WHEN  JUBY  HAS  BEEN  SUMMONED  17 

ON  JUSTICE'S  OWN  MOTION 18-19 

WHEN  JUSTICE  is  OFFICIALLY 

OCCUPIED 20 

OBDEBING  CASE  TO  STAND  OPEN 

FOB  TBIAL 21-24 

STAGE  OF  PROCEEDINGS  AT  WHICH 

ADJOURNMENT  MAY  BE  HAD.  25-27 
WHEN  IMPROPEB  ADJOURNMENTS 

WAIVED  . .  .  28-29 


Adjournment  Discretionary  with  the  Court. 

SECTION  1.  The  granting  or  refusing  of  a  continuance 
rests  in  the  sound  discretion  of  the  court.  Musgrove  vs. 
Perkins,  9  Cal.  212. 

Adjournment  by  Consent. 

SEC.  2.  The  trial  may  be  adjourned  by  consent.  Gen. 
Laws,  5514. 

SEC.  3.  Where  a  case  is  adjourned  to  no  certain  day,  but 
the  time  is  left  to  the  agreement  of  counsel,  the  justice  has 
no  authority  afterwards  to  appoint  a  time  and  place  for  the 
trial,  without  the  consent  of  both  parties.  If  the  defendant 
refuse  to  agree  to  any  time,  the  plaintiff  must  commence  his 
action  anew.  4  Zab.  (N.  J.)  419.- 

SEC.  4.  A  justice  cannot  adjourn  a  cause  on  an  adjourned 
"day,  in  the  absence  of  the  defendant,  and  without  his  con 
sent,  and  then  hear  the  cause  in  his  absence  and  without 
notice.  2  Green,  (N.  J.)  590. 

Adjournment  for  a  Period  not  Exceeding  Ten  Days. 

SEC.  5.     The  trial  may  be  adjourned  by  consent,  or  upon 
application  of  either  party,  without  the  consent  of  the  other, 
for  a  period  not  exceeding  ten  days  (except  as  provided  in 
the  next  section),  as  follows  : 
27 


210  JUSTICES'  TREATISE. 

1st.  The  party  asking  the  adjournment  shall,  if  required 
by  his  adversary,  prove,  by  his  own  oath  or  otherwise,  that 
he  cannot  for  want  of  material  testimony,  which  he  expects 
to  procure,  safely  proceed  to  trial,  and  shall  show  in  what 
respect  the  testimony  expected  is  material,  and  that  he  has 
used  due  diligence  to  procure  it,  and  has  been  unable  to 
do  so. 

2d.  That  the  party  asking  the  adjournment  shall  also,  if 
required  by  the  adverse  party,  consent  that  the  testimony 
of  any  witness  of  such  adverse  party  who  is  in  attendance, 
be  then  taken  by  deposition  before  the  justice,  which  shall 
accordingly  be  done,  and  the  testimony  so  taken  may  be 
read  on  the  trial,  with  the  same  effect  and  subject  to  the 
same  objections  as  if  the  witness  were  produced  ;  but  such 
objections  shall  be  made  at  the  time  of  taking  the  deposi 
tion. 

3d.  The  court  may  also  require  the  moving  party  to  state, 
upon  affidavit,  the  evidence  which  he  expects  to  obtain,  and 
if  the  adverse  party  thereupon  admit  that  such  evidence 
would  be  given,  and  that  it  be  considered  as  actually  given 
on  the  trial,  or  offered  and  overruled  as-  improper,  the  trial 
shall  not  be  postponed.  Pr.  Act,  583  ;  Gen.  Laws,  5514. 

SEC.  6.  A  justice  cannot  postpone  a  cause  indefinitely. 
3  Hill,  499. 

SEC.  7.  Neither  can  he  adjourn  a  cause  for  a  longer 
period  than  is  allowed  by  statute,  without  express  consent 
of  both  parties.  And  having  adjourned  ten  days  by  con 
sent,  he  was  held  to  have  lost  jurisdiction  by  an  adjourn 
ment,  without  consent,  for  one  day  more.  2  E.  D.  Smith, 
(N.  Y.)  339. 

Adjournment  for  a  Period  not  Exceeding  Four  Months. 

SEC.  8.  An  adjournment  may  be  had,  either  at  the  time 
of  joining  issue  or  at  any  subsequent  time  to  which  the  case 
may  stand  adjourned,  on  application  of  either  party,  for  a 
period  longer  than  ten  days,  but  not  to  exceed  four  months, 
from  the  time  of  the  return  of  the  summons,  upon  proof 
by  the  oath  of  the  party  or  otherwise,  to  the  satisfaction 
of  the  justice,  that  such  party  cannot  be  ready  for  trial 
before  the  time  to  which  he  desires  an  adjournment,  for 


ADJOUBNMENT.  211 

want  of  material  evidence,  particularly  describing  it,  and 
that  tlie  delay  lias  not  been  made  necessary  by  any  act  of 
negligence  on  his  part  since  the  action  was  commenced ; 
that  he  has  used  due  diligence  to  procure  the  evidence, 
and  has  been  unable  to  do  so ;  and  that  he  expects  to 
procure  the  evidence  at  the  time  stated  by  him ;  provided, 
that  if  the  adverse  party  admit  that  such  evidence  would 
be  given,  and  consent  that  it  may  be  considered  as  given 
on  the  trial,  or  offered,  or  overruled  as  improper,  the 
adjournment  shall  not  be  had.  Gen.  Laws,  5515. 

Grounds  for  Adjournment. 

SEC.  9.  A  refusal  to  grant  a  continuance  for  the  absence 
of  witnesses  or  counsel,  under  circumstances  showing  that 
the  party  or  his  counsel  was  surprised  as  to  the  time  or 
place  of  holding  court,  is  error.  Boss  vs.  Austill,  2  Cal.  192. 

SEC.  10.  A  mistaken  advice  of  counsel  to  his  client  not 
to  prepare  for  trial  is  no  ground  for  a  continuance.  Mis 
takes  in  matters  of  law  are  frequently  made  by  counsel,  and 
if  parties  could  be  relieved  by  simple  allegations  of  having 
acted,  or  neglected  to  act,  in  consequence  of  advice  predi 
cated  upon  such  mistakes^  there  would  be  no  end  of  the 
cases  in  which  such  excuses  would  be  offered.  Musgrove  vs. 
Perkins,  9  Cal.  212. 

SEC.  11.  The  absence  of  evidence  is  no  cause  for  a  con 
tinuance,  unless  reasonable  diligence  has  been  used  to  pro 
cure  it.  The  party  must  have  resorted  to  the  proper  legal 
means  for  that  purpose,  or  he  must  show  to  the  satisfaction 
of  the  court  that  a  resort  to  such  means  would  have  been 
unavailing.  Where  the  evidence  is  in  his  own  possession, 
its  absence  is  not  excused  by  showing  that  through  inad 
vertency  he  is  unable  to  produce  it.  17  Cal.  128. 

The  Affidavit  for  Adjournment. 

SEC.  12.  An  affidavit  for  continuance,  on  the  ground  of 
the  absence  of  a  witness,  must  aver,  that  the  party  cannot, 
to  his  knowledge,  prove  the  same  facts  by  any  other  wit 
ness  (Pierce  vs.  Paine  etal.,  14  Cal.  419 ;  People  vs.  Gaunt, 
23  Cal.  156);  that  the  testimony  wanted  is  not  merely 
cumulative,  that  such  application  is  not  made  for  delay, 


212  JUSTICES'  TREATISE. 

and  the  character  of  diligence  used  in  trying  to  obtain  the 
attendance  of  the  witness.  The  allegation  that  a  party 
lias  used  all  the  diligence  in  his  power  is  not  sufficient ;  it 
should  be  shown  to  the  court  of  what  such  diligence  con 
sisted,  whether  by  exhausting  the  process  of  the  court  or 
otherwise.  People  vs.  Thompson,  4  Cal.  241 ;  Kuliland  vs. 
Sedgwick,  17  Cal.  128. 

Form  of  the  Affidavit  for  Adjournment. 
SEC.  13.     The  following  is  a  form   of  an   affidavit  for 
adjournment: 

In  the  justice's  court  in  and  for township,  county  of , 

state  of  . . 


plaintiff, 
against 


defendant. 

Personally  appeared  before  me,  the  defendant  above-named,  who  being  by 

me  first  duly  sworn,  deposes  and  says,  that is  a  material  witness 

for  him  in  his  defense,  that  he  can  prove  by  said [if  required,  state 

what  you  can  prove  by  him]  facts  which  he  has  made  known  to  his  counsel, 
and  is  by  his  said  counsel  advised  that  said  facts  are  material,  and  that  he 
cannot  go  safely  to  trial  without  proving  the  same ;  that  he  can  prove  said 
facts  by  said  witness,  and  that  he  cannot,  to  his  knowledge,  prove  the  same 
by  any  other  witness ;  that  the  testimony  of  said  witness  will  not  be  merely 
cumulative,  thst  he  has  procured  the  issuance  of  a  subpena  and  directed  the 

same  to  said ,  and  did  place  the  same  in  the  hands  of  ....  constable 

of  said  township,  and  directed  said  constable  where,  according  to  the  bes^ 
knowledge  and  belief  of  said  affiant,  said  witness  could  be  found;  that  said 
constable  has  made  return  of  said  subpena,  saying  that  he  has  made  diligent 

search  for  said ,  and  that  he  cannot  be  found,  that  since  the  return 

of  said  constable  he  has  made  inquiry  of  persons  likely  to  know  the  where 
abouts  of  said ,  and  has  been  informed  that  said  witness  left  this 

county  for  a  short  time  on  business  and  that  he  will  not  return  within  the 

jurisdiction  of  this  court  until  about  the  ....  day  of [whatever  cause 

exists  for  his  non-service  you  should  state  it,  the  object  being  to  show  the 
court  what  diligence  you  have  used];  that  he  can  procure  theat  tendance  of 
said  witness  within  the  next  ten  days,  and  that  this  application  is  not  made 
for  delay  but  that  he  may  have  justice. 

Subscribed  and  sworn  to  before  me,  this day  of ,  187  . . 


Justice  of  the  peace. 

The  Undertaking  on  Adjournment  for  a  Period  not  Exceeding  Four 

Months. 

SEC.  14.     No  adjournment  shall  be  granted  for  a  period 
longer  than  ten  days,  upon  the  application  of  either  party, 


ADJOURNMENT.  213 

except  upon  condition  that  such  party  file  an  undertaking, 
with  sureties,  to  be  approved  by  the  justice,  to  the  effect 
that  they  will  pay  to  the  opposite  party  the  amount  of  any 
judgment  which  may  be  recovered  against  the  party  apply 
ing.  Pr.  Act,  585;  Gen.  Laivs,  5516. 

Form   of  an  Undertaking    on   Adjournment  for   a   Period  not   Ex 
ceeding  Four  Mouths. 

SEC.  15.     The  following  is  a  form  of  an  undertaking  on 
adjournment  for  a  period  not  exceeding  four  months: 

In  the  justice's  court  in  and  for township,  county  of , 

state  of  

plaintiff, 
against 


defendant. 

Whereas,  the  above-named  defendant  has  demanded  of  said  court,  upon 
his  affidavit  presented  thereto,  an  adjournment  of  the  trial  of  said  cause  for 
a  longer  period  than  ten  days  and  not  exceeding  four  months  which  applica 
tion  has  been  granted.  Now,  therefore,  we  the  undersigned  residents  of  said 
county,  in  consideration  of  the  premises,  do  hereby  jointly  and  severally 
promise  that  we  will  pay  to  the  above-named  plaintiff  the  amount  of  any 
judgment  which  he  may  recover  against  the  said  defendant. 

In  witness  whereof,  we  hereunto  subscribe  our  names. 

[I..8-] 

[L.S.] 

Adjournment  when  a  Trial  by  Jury  is  Demanded. 

SEC.  16.  When  a  trial  by  jury  is  demanded,  the  trial  of 
the  case  shall  be  adjourned,  until  a  time  and  place  fixed  for 
the  return  of  the  jury.  If  neither  party  desire  an  adjourn 
ment,  the  time  and  place  shall  be  determined  by  the  justice, 
and  shall  be  on  the  same  day,  or  within  the  next  two  days. 
Gen.  Laws,  5518. 

Adjournment  when  a  Jury  has  been  Summoned. 

SEC.  17.  A  justice  has  a  discretionary  power  to  continue 
a  case  for  a  week  or  more,  and  may  require  the  same  jury  to 
attend  again,  though  the  better  course  might  be,  to  sum 
mon  a  new  jury  at  the  continued  term,  as  is  done  in  the 
county  court.  25  Vt.  (2  Deane's)  93. 

Adjournment  on  Justice's  own  Motion. 
SEC.  18.     A  justice  may  make  a  second  adjournment  of  a 


214       ,  JUSTICES'  TREATISE. 

cause,  of  his  own  motion,  without  affidavit  (4  Earring.  92, 
313),  but  the  record  should  show  the  cause  for  such  adjourn 
ment.  4  Harring.  92,  352. 

SEC.  19.  He  cannot  adjourn  a  cause  on  his  own  motion 
and  for  his  own  convenience,  for  a  longer  time  than  he 
has  power  to  do  for  the  convenience  of  the  parties;  whether 
he  has  power  to  adjourn  a  cause  for  any  time  for  his  own 
convenience,  quaere.  1  Harring.  127. 

Adjournment  -when  Justice  is  Officially  Occupied. 

SEC  20.  If  a  justice  adjourns  a  cause  till  one  o'clock  p. 
M.,  and  is  occupied  officially  till  five  P.M.,  he  can  resume 
the  cause  though  the  defendant  be  absent.  10  Wend.  102. 

Ordering  Case  to  Stand  Open  for  Trial. 

SEC.  21.  A  case  being  properly  in  court,  it  is  competent 
for  the  justice  to  order  the  case  to  stand  open  for  trial,  for 
a  reasonable  time. 

SEC.  22.  It  is  his  duty  to  see  that  the.  defendant  has  his 
day  in  court,  and  an  opportunity  to  make  his  defense;  and 
where  the  justice  ordered  the  case  to  stand  open  for  trial, 
with  the  understanding  that  if  the  defendant  appeared  by 
three  o'clock,  or  in  a  reasonable  time  (one  o'clock  being  the 
time  set  in  the  writ),  the  right  of  appearing  and  defending 
the  suit  should  be  secured  to  him,  and  the  justice  returned 
about  the  hour  of  four,  and  within  the  time  in  which  he  had 
the  power,  by  statute,  to  vacate  any  record  of  default,  etc., 
and  then  notified  the  counsel  of  the  defendant  that  the  case 
was  open  for  trial,  if  they  desired  to  make  any  defense,  and 
requested  him  to  appear  and  answer  for  that  purpose,  it  was 
held,  that  this  was  a  full  compliance  with  the  duty  of  the 
justice  after  the  case  was  ordered  to  stand  open.  24  Vt. 
(2  Deane's)  87. 

SEC.  23.  But  a  justice  has  no  power  to  open  a  case  for 
further  hearing  after  the  day  of  trial  has  passed,  the  case 
having  been  submitted  by  the  plaintiff,  and  his  witnesses 
having  departed.  2  E.  D.  Smith  (N.  .  Y.)  37. 

SEC.  24.  Neither  can  he  hold  a  cause  open  for  any  num 
ber  of  days  from  the  return  of  the  summons,  where  the 
defendant  does  not  appear  and  there  is  no  issue  joined, 


AMENDMENTS.  215 

although  he  might,  perhaps,  adjourn  the  cause  to  a  day  cer 
tain  ;  and,  where  a  cause  was  held  open  four  days  and  then 
tried,  the  defendant  not  appearing,  the  proceedings  were 
adjudged  erroneous.  4  Denio,  160. 

Stage  of  Proceedings  at  which  Adjournment  may  be  had. 

SEC.  25.  A  justice  may  adjourn  his  court  to  any  part  of 
the  town  in  which  its  original  place  of  sitting  was  fixed. 
He  may  adjourn  after  a  jury  has  been  drawn  which  the  offi 
cer  is  proceeding  to  summon  ;  the  statute  confines  the  power 
to  no  particular  stage  of  the  proceedings.  6  Vt.  60. 

SEC.  26.*  But  he  has  no  power  to  act  in  the  case  or  con 
tinue  it,  before  the  time  at  which  the  writ  is  returnable.  6 
Shep.  23. 

'  SEC.  27.  Nor  where  he  has  ordered  a  continuance  of  an 
action  can  he  order  a  further  continuance  prior  to  the  day 
appointed.  5  Shep.  413. 

"When  Improper  Adjournments  Waived. 

SEC.  28.  If  a  justice  improperly  adjourn  a  cause  and  the 
parties  appear  on  the  day  of  adjournment,  they  waive  the 
irregularity.  3  Hill,  180. 

SEC.  29.  But  an  appearance  by  the  defendant  at  the  time 
and  place  for  the  purpose  of  protesting  against  such  con 
tinuance,  is  no  waiver  of  the  illegality.  6  Shep.  23. 


CHAPTER    XXIV. 
AMENDMENTS. 

SECTION  1.  The  pleadings  may  be  amended  at  any  time 
before  the  trial,  to  supply  a  deficiency  or  omission,  when 
by  such  amendment  substantial  justice  will  be  promoted. 
If  the  amendment  be  made  after  the  issue,  and  it  be  made 
to  appear  to  the  satisfaction  of  the  court,  by  oath,  that  an  ad 
journment  is  necessary  to  the  adverse  party  in  consequence 
of  such  amendment,  an  adjournment  shall  be  granted.  The 
court  may,  also,  in  its  discretion,  require  as  a  condition  of 
an  amendment  the  payment  of  costs  to  the  adverse  party,  to 


216  JUSTICES'  TREATISE. 

be  fixed  by  the  court,  not  exceeding  twenty  dollars ;  but 
such  payment  shall  not  be  required  unless  an  adjournment 
is  made  necessary  by  the  amendment ;  nor  shall  an  amend 
ment  be  allowed  after  a  witness  is  sworn  on  the  trial,  when 
an  adjournment  thereby  will  be  made  necessary.  Pr.  Act, 
580. 

SEC.  2.  The  object  of  the  statute  in  reference  to  amend 
ments  is  unquestionably  the  furtherance  of  justice.  So  far 
as  that  goes,  courts  ought  to  be  disposed  to  treat  such  appli 
cations  favorably.  In  most  instances  it  is  a  matter  of  course 
that  they  should  be  granted.  But  courts  have  not  been  in 
clined  to  look  very  kindly  upon  statutes  of  limitation,  except 
where  they  were  used  as  the  instruments  of  justice,  and  not 
strategy.  For  example :  there  is  a  wide  distinction  between 
the  protection  of  minor  heirs  by  such  means,  and  the  facility  • 
on  the  other  hand  afforded  to  the  wary  and  skillful  of  escap 
ing  from  the  payment  of  an  equitable  demand.  In  the  first 
case  the  whole  scope,  force  and  effect,  should  be  given  to 
the  law;  in  the  latter,  it  would  only  be  reluctantly  allowed 
its  course  for  the  sole  end  of  maintaining  it  as  a  general 
rule  of  conduct.  The  single  evil  of  that  occasion  would  be 
less  pernicious  than  the  violation  of  the  law  for  the  purpose 
of  doing  justice.  Cooke  vs.  Spears,  2  Cal.  411. 

SEC.  3.  It  is  always  in  the  power  of  the  court  to  allow 
an  amendment  to  the  complaint,  so  it  does  not  affect  the 
substantial  rights  of  the  parties.  9  Cal.  58.  The  court 
may  allow,  after  the  close  of  plaintiff's  evidence,  the  com 
plaint  to  be  amended  by  adding  the  name  of  another  party 
plaintiff,  if  it  does  not  affect  the  substantial  rights  of  the 
parties.  Polk  et  al.  vs.  Coffin  &  Sivain,  9  Cal.  56. 

SEC.  4.  Under  the  liberal  provisions  of  our  practice  act, 
courts  should  allow  amendments  with  great  liberality  at  any 
stage  of  proceedings  before  trial,  when  required,  seeing  that 
no  injurious  delays  are  occasioned,  and  that  the  matter  of 
the  amendment  is  essential  to  a  fair  trial  on  the  legal  merits 
of  the  case.  McMillan  vs.  Dana  et  al.,  18  Cal.  348,  349. 

SEC.  5.  In  an  action  -upon  a  contract  for  beef  furnished 
the  defendant,  the  complaint  alleged  that  the  beef  was  fur 
nished  to  the  defendant,  but  did  not  allege  that  it  was  fur 
nished  "at  his  request."  The  defendant  moved  to  dismiss 


AMENDMENTS.  217 

the  case  on  the  ground  that  the  complaint  did  not  set  forth 
any  cause  of  action.  The  .plaintiff  thereupon  moved  for 
leave  to  amend  his  complaint.  The  court  denied  the  motion 
of  the  plaintiff  to  amend,  and  granted  the  motion  of  the 
defendant,  and  dismissed  the  case  :  Held,  that  the  court 
erred  in  refusing  to  allow  the  plaintiff  to  amend  his  com 
plaint,  and  in  dismissing  the  suit.  Amendments  should  be 
readily  allowed  whenever  they  will  tend  to  the  furtherance 
of  justice,  and  the  greatest  liberality  in  this  respect  should 
be  extended  to  pleadings  in  justices'  courts.  Butler  vs. 
King,  10  Cal.  342,  343. 

SEC.  6.  It  would  be  carrying  the  power  and  discretion 
of  the  court  to  an  extreme  point  to  permit  a  party,  after 
summoning  his  adversary  to  appear  and  defend  an  action 
.  ex  contractu,  to  amend  his  declaration  so  as  to  change  the 
proceeding  into  an  action  ex  delicto.  Ramirez  vs.  Murray,  5 
Cal.  224. 

SEC.  7.  Amendment  of  Pleading. — If  evidence  is  objected 
to  because  the  defense  under  which  it  is  offered  is  defect 
ively  pleaded,  the  court  should  allow  the  pleading  to  be 
amended.  Carpentier  vs.  Small,  35  Cal.  346. 

SEC.  8.  An  amended  answer  supersedes  the  original  and 
destroys  its  effects  as  a  pleading.  Jones  vs.  Frost,  28  Cal. 
246. 

SEC.  9.  Fraud  discovered  after  suit  brought  will  entitle 
the  party  to  amend  his  action  so  as  to  include  it.  Truebody 
vs.  Jacobson,  2  Cal.  269 ;  Natoon  vs.  Eder,  6  Cal.  61. 

SEC.  10.  To  subserve  the  purposes  of  justice,  courts 
should  allow  a  garnishee  to  amend  his  answer  whenever  it 
appears  that  he  committed  a  mistake,  or  had  fallen  into  an 
error  which  could  not  reasonably  have  been  avoided.  Smith 
vs.  Brown,  5  Cal.  118. 

SEC.  11.  The  court  below  may  allow  a  summons  to  be 
amended  by  inserting  a  notice  of  the  cause  of  action,  etc. 
2  Cal.  193. 

SEC.  12.  If  the  discretion  of  courts  in  regard  to  allowing 
or  refusing  amendments,  be  abused  or  illegally  exercised, 
an  appellate  court  will  interpose.  Cook  vs.  Spear,  2  Cal. 

409. 

28 


218  JUSTICES'  TREATISE. 


CHAPTER     XXV. 


APPEALS. 


FBOM     JUSTICE'S    COTJET,     TO 


COUNTY  COUKT,  BIGHT  OF.     1-12 

NOTICE  OF 13-19 

STATEMENT  ON.  .  20-32 


SECS.  SECS. 

UNDERTAKING  ON 33-47 

JUSTIFICATION  OF  SURETIES.  . . .  48-51 
FORMS. . ,  52 


From  Justice's  Court  to  County  Court,  Right  of. 

SECTION  1.  Judgments  in  all  civil  cases,  rendered  by 
justices',  recorders'  and  mayors'  courts,  may  be  reviewed  by 
the  county  court.  When  the  appeal  is  taken  on  questions  of 
law  alone,  it  shall  be  heard  on  a  statement  of  the  case  pre 
pared  as  prescribed  in  section  twenty  of  this  chapter.  When 
the  appeal  is.  taken  on  questions  of  fact,  or  on  questions  of 
both  law  and  fact,  the  action  shall  be  tried  anew  in  the 
county  court,  and  either  party  may,  on  such  trial,  demand  a 
jury.  Upon  an  appeal  heard  upon  a  statement  of  the  case, 
the  county  court  may  review  all  orders  affecting  the  judg 
ment  appealed  from,  and  may  set  aside  or  confirm  or  modify, 
any  or  all  of  the  proceedings  subsequent  to  and  dependent 
upon  said  judgment,  and  may,  if  necessary  and  proper,  or 
der  a  new  trial.  When  the  action  is  tried  anew  on  appeal, 
the  trial  shall  be  conducted  in  all  respects  as  trials  in  the 
district  court.  The  provisions  of  this  act,  as  to  changing 
the  place  of  trial,  and  all  the  provisions  as  to  trials  in  the 
district  court,  shall  be  applicable  to  trials  on  appeal  in  the 
county  court.  For  a  failure  to  prosecute  an  appeal,  or 
unnecessary  delay  in  bringing  it  to  a  hearing,  the  county 
court,  after  notice,  may  order  the  appeal  to  be  dismissed. 
Judgments  rendered  in  the  county  court  on  appeal  shall 
have  the  same  force  and  effect,  and  be  enforced  in  the  same 
manner  as  judgments  in  actions  commenced  in  the  district 
court.  Gen.  Laws,  5305. 

SEC.  2.  By  the  provisions  of  section  three  hundred  and 
sixty-six,  there  are  two  distinct  classes  of  appeal  from  the 
judgments  rendered  by  justices  of  the  peace,  recorders  and 
mayors:  1st.  When  the  appeal  is  taken  on  questions  of 


APPEALS.  219 

law  alone.  2d.  When  taken  on  questions  of  fact,  or  on 
questions  of  both  law  and  fact.  When  the  appeal  is  taken 
on  questions  of  law  alone,  the  justice  sends  up  a  statement 
with  a  copy  of  his  docket,  and  all  motions  filed  by  the 
parties*during  the  trial,  the  notice  of  appeal  and  the  under 
taking  on  appeal.  But  when  the  appeal  is  on  questions  of 
fact,  or  of  both  law  and  fact,  he  sends  up  no  statement. 
The  statement  must  contain  the  grounds  upon  which  the 
party  intends  to  rely  on  the  appeal,  and  so  much  of  the 
evidence  as  may  be  necessary  to  explain  the  grounds,  and 
no  more.  The  object  which  was  intended  to  be  accom 
plished  by  the  act  in  distinguishing  between  the  two  classes 
of  appeals,  was  to  save  costs  in  the  appellate  court,  in  cer 
tain  cases.  As  the  same  laws  governing  the  general  trans 
actions  of  business  life  must  be  applied  in  justices'  courts 
as  well  as  in  others,  many  cases  must  arise  where  the  dis 
pute  is  not  about  facts,  but  simply  about  questions  of  law 
alone.  If  the  act  required  a  trial  anew  in  these  cases,  it  • 
would  add  greatly  to  the  costs  in  the  county  court.  As  the 
appellant  is  required  in  the  statement  to  give  the  grounds  he 
intends  to  rely  on,  both  parties  come  before  the  court  with 
out  witnesses,  and  only  prepared  to  discuss  the  questions  of 
law.  People  vs.  Freelon,  8  Cal.  518. 

SEC.  3.  On  appeal  from  a  justice's  court  to  the  county 
court,  on  questions  of  law  alone,  if  a  new  trial  be  ordered, 
it  should  take  place  in  the  county  court.  8  Cal.  518. 

SEC.  4.  Any  party  dissatisfied  with  a  judgment  rendered 
in  a  justice's  court,  may  appeal  therefrom  to  the  county 
court  of  the  county,  any  time  within  thirty  days  after  the 
rendition  of  the  judgment.  The  appeal  shall  be  taken  by 
filing  a  notice  of  appeal  with  the  justice,  and  serving  a  copy 
on  the  adverse  party.  The  notice  shall  state  whether  the 
appeal  is  taken  from  the  whole  or  a  part  of  the  judgment, 
and  if  from  a  part,  what  part,  and  whether  the  appeal  is 
taken  on  questions  of  law  or  fact,  or  both.  Gen.  Laws, 
5555. 

SEC.  5.  Where  the  appellant  dies  on  the  same  day  that 
the  judgment  is  rendered,  there  is  no  authority  for  prose 
cuting  the  cause  in  the  name  of  the  deceased;  but  all  pro 
ceedings  ought  to  be  stayed  until,  by  suggestion,  his  execu- 


220  JUSTICES'  TEEATISE. 

tor  or  administrator  is  made  a  party.     Sanchez  vs.  Roach, 
5  Cal.  248. 

SEC.  6.  No  appeal  can  be  taken  to  the  county  court  from 
a  justice's  judgment  rendered  by  default.  People  vs.  County 
Court  of  El  Dorado,  10  Cal.  19;  Funkenstein  vs.  Etg^itter,  11 
Cal.  328. 

SEC.  7.  In  Maine,  where  an  action  commenced  before  a 
justice  has  been  defaulted,  no  appeal  lies.  28  Maine  (15 
Shep.)  102.  And  the  plaintiff  is  entitled  to  costs  of  the  ap 
peal.  31  Maine  (1  Eed.)  557. 

SEC.  8.  In  California,  a  plaintiff  cannot  appeal  from  a 
judgment  of  nonsuit  rendered  on  his  own  motion.  Sleeper 
vs.  Kelly,  22  Cal.  456. 

SEC.  9.  In  Illinois,  one  of  several  defendants  may  ap 
peal  from  a  judgment  of  a  justice,  though  the  others  refuse 
to  join.  2  Scam.  46. 

SEC.  10.  So  in  Wisconsin,  if  a  justice  renders  a  judgment 
against  two  or  more  parties,  one  or  either  of  them  may  ap 
peal  without  joining  the  others.  5  Wis.  156.  And  an  ap 
peal  by  one  or  more  co-defendants,  against  whom  judgment 
has  been  rendered,  stops  all  further  proceedings  there  and 
transfers  the  entire  case  to  the  appellate  court.  2  Wis.  584. 

SEC.  11.  In  Missouri,  the  absence  of  the  justice  from 
home  during  the  ten  days  after  trial,  may  be  a  good  excuse 
for  not  appealing,  but  it  must  appear  that  he  was  absent 
during  the  whole  of  the  ten  days.  5  Mo.  386. 

SEC.  12.  In  Iowa,  a  written  agreement  to  abide  by  the 
decision  of  a  justice  as  final,  is  binding  and  precludes  an 
appeal.  3  Iowa,  332. 

Notice  of. 

SEC.  13.  In  California,  the  filing  of  a  notice  of  appeal 
must  precede  the  filing  of  the  undertaking  on  appeal.  Until 
an  appeal  is  taken  there  is  nothing  to  give  effect  to  the 
undertaking.  Buckliolder  vs.  Byers,  10  Cal.  481. 

SEC.  14.  Where  the  object  of  notice  of  appeal  to  the 
county  court  is  accomplished,  it  is  immaterial  whether  the 
notice  is  given  or  not.  Where  both  parties  appear,  no  no 
tice  whatever  is  necessary  to  be  shown.  McLeran  vs.  Sliart- 
zer,  5  Cal.  70. 

SEC.    15.      A  judgment  was  rendered  for  plaintiff  in  a 


APPEALS.  221 

justice's  court,  on  July  2d,  1857.  Notice  of  appeal  was 
handed  to  the  justice  on  the  sixth  of  July,  and  on  the  same 
day  notice  of  appeal  was  served  on  the  attorney  of  plaintiff. 
This  notice  described  the  parties  to  the  suit  and  the  justice 
before  whom  it  was  obtained,  but  stated  that  the  appeal  was 
taken  from  a  judgment  rendered  on  the  fourth  day  of  July. 
The  notice  given  to  the  justice  described  the  judgment  cor 
rectly.  The  justice  sent  up  a  copy  of  his  docket  and  the 
papers,  except  the  notice.  The  appeal  was  taken  on  ques 
tions  both  of  law  and  fact.  When  the  case  was  called  in 
the  county  court,  both  parties  appeared,  and  each  asked 
liberty  to  make  a  motion.  The  plaintiff's  counsel  was  al 
lowed  to  make  his  motion  first,  and  moved  to  dismiss  the 
appeal  and  affirm  the  judgment  of  the  justice,  for  two  rea 
sons  :  First,  there  was  no  notice  of  appeal  on  file ;  sec 
ond,  there  was  no  notice  of  appeal  served  on  defendant. 
The  mistake  in  the  date  of  the  judgment,  as  stated  in  the 
notice  of  appeal  which  was  served  on  respondent,  was  not 
material.  The  notice  was  sufficient.  It  was  the  duty  of 
the  justice  to  send  up  the  notice  of  appeal  received  by  him. 
The  county  court  should  have  given  the  appellant  the  op 
portunity  to  move ,  for  an  order  compelling  the  justice  to 
send  it  up.  The  order  of  the  county  court  dismissing  the 
appeal  and  affirming  the  judgment  of  the  justice  is  reversed, 
and  that  court  will  proceed  to  try  the  case  anew.  9  Gal.  18. 

SEC.  16.  The  statute  concerning  appeals  from  justices' 
courts  provides  that  "an  appeal  may  be  taken  by  filing  a 
notice  with  the  justice  and  serving  it  upon  the  adverse 
party."  There  is  nothing  in  tHis  statute  which  forbids  ser 
vice  of  notice  of  appeal  upon  the  attorney,  if  one  appeared, 
for  the  party  appealing  on  the  trial.  The  general  law  regu 
lating  appeals,  which  provides  that  notice  may  be  served  on 
the  party  or  his  attorney,  must  govern  cases  arising  in  jus 
tices'  courts.  Welton  vs.  Garibardi,  6  Cal.  245. 

SEC.  17.  Where  a  judgment  rendered  before  a  justice  is 
appealed  from,  and  the  parties  by  consent  withdraw  the 
appeal,  the  judgment  is  restored.  4  Janes'  Law  (N.  C.)  508. 

SEC.  18.  A  party  appealed  from  the  judgment  of  a  jus 
tice,  and  afterwards  countermanded  the  appeal :  Held,  that 
the  judgment  was  vacated  by  the  appeal,  but  that  being 


222  JUSTICES'  TREATISE. 

countermanded  it  was  restored  to  its  former  force.     Bus- 
bee's  Law  (N.  C.)  392. 

SEC.  19.  After  an  appeal  is  taken  by  the  defendant,  the 
justice  has  no  authority,  even  before  he  returns  the  papers, 
to  receive  the  amount  he  adjudged  to  the  plaintiff.  11  Ala. 
166. 

Statement  on. 

SEC.  20.  When  a  party  appeals  to  the  county  court  on 
questions  of  law  alone  he  shall,  within  ten  days  from  the 
rendition  of  judgment,  prepare  a  statement  of  the  case  and 
file  the  same  with  the  justice.  The  statement  shall  contain 
the  grounds  upon  which  the  party  intends  to  rely  on  the 
appeal,  and  so  much  of  the  evidence  as  may  be  necessary 
to  explain  the  grounds,  and  no  more.  Within  ten  days 
after  he  receives  notice  that  the  statement  is  filed,  the 
adverse  party,  if  dissatisfied  with  the  same,  may  file  amend 
ments.  The  proposed  statement  and  amendnientstshall  be 
settled  by  the  justice,  and  if  no  amendments  be  filed,  the 
original  statement  shall  be  adopted.  The  statement  thus 
adopted  or  as  settled  by  the  justice,  with  a  copy  of  the 
docket  of  the  justice,  and  all  motions  filed  with  him  by  the 
parties  during  the  trial  and  the  notice  of  appeal,  shall  be 
used  on  the  hearing  of  the  appeal  before  the  county  court. 
Pr.  Act,  Sec.  625. 

SEC.  21.  When  a  party  appeals  to  the  county  court  on 
questions  of  fact,  or  on  questions  of  both  law  and  fact,  no 
statement  need  be  made,  but  the  action  shall  be  tried  anew 
in  the  county  court.  Pr.  Ad,  Sec.  626. 

SEC.  22.  In  a  statement  for  a  new  trial  the  evidence  may 
be  simply  referred  to,  and  need  not  be  contained  in  the 
statement  itself.  It  is  not  so  in  a  statement  on  appeal,  in 
which  the  evidence,  if  relied  upon,  must  be  set  out.  If  the 
statement  on  appeal  does  not  contain  the  evidence,  or  so 
much  at  least  as  may  be  necessary,  then  the  appellant  can 
not  rely  upon  any  ground  depending  upon  the  testimony. 
Dickinson  vs.  Van  Horn,  9  Cal.  211. 

SEC.  23.  Instruments  are  sometimes  admissible  for  one 
purpose  and  inadmissible  for  another ;  and,  when  objected 
to,  the  grounds  of  objection  should  be  stated ;  and  in  pre 
paring  the  record  for  appeal  so  much  of  the  evidence  should 


APPEALS.  «  223 

be  incorporated  as  may  be  necessary  to  indicate  the  perti 
nency  and  materiality  of  the  objections  taken,  otherwise  they 
cannot  be  regarded.  Provost  vs.  Piper  et  al.,  9  Cal.  553. 

SEC.  24.  Upon  receiving  the  notice  of  appeal  and  on  pay 
ment  of  the  fees  of  the  justice  and  filing  an  undertaking  as 
required  in  section  thirty-three,  the  justice  shall,  within  five 
days,  transmit  to  the  clerk  of  the  county  court,  if  the  appeal 
be  on  question  of  law  alone,  a  certified  copy  of  his  docket, 
the  statement  as  admitted  or  as  settled,  the  notice  of  appeal 
and  the  undertaking  filed;  or,  if  the  appeal  be  on  questions 
of  fact,  or  both  law  and  fact,  a  certified  copy  of  his  docket, 
the  pleadings,  all  notices,  motions  and  other  papers  filed  in 
the  cause,  the  notice  of  appeal  and  the  undertaking  filed, 
•and  the  justice  may  be  compelled  by  the  county  court,  by 
an  order  entered,  upon  motion,  to  transmit  such  papers,  and 
may  be  fined  for  neglect  or  refusal  to  transmit  the  same  ;  a 
certified  copy  of  such  order  may  be  served  on  the  justice  by 
the  party  or  his  attorney.  In  the  county  court,  either  party 
shall  have  the  benefit  of  all  legal  objections  made  in  the 
justice's  court.  Pr.  Act,  627;  Gen.  Laws,  5558.  The  filing 
of  a  notice  of  appeal  and  undertaking  on  appeal  in  a  justice's 
court,  after  the  rendition  of  a  verdict  by  the  jury,  but  before 
the  entry  of  judgment  thereon,  does  not  deprive  the  justice 
of  authority  to  enter  up  judgment  on  the  verdict.  Fugit  vs. 
Cox,  2  Nevada,  399. 

SEC.  25.  A  justice  not  being  the  successor  of  another 
justice,  but  having  in  his  possession  the  docket  of  another 
justice,  in  the  cases  provided  for,  cannot  grant  an  appeal 
from  a  judgment  on  such  docket,  and  certify  a  transcript  in 
the  case,  until  he  shall  have  previously  transferred  the  judg 
ment  to  his  own  docket.  3  Ind.  112. 

SEC.  26.  On  an  appeal  from  the  judgment  of  a  justice  in 
Indiana,  the  cause  of  action  filed  with  the  justice  need  not 
be  copied  or  referred  to  in  the  justice's  transcript.  6 
Black/.  116. 

SEC.  27.  On  appeal,  it  must  appear  from  the  transcript 
of  the  record  that  the  plaintiff  below  had  filed  a  statement 
of  his  demand,  or  some  note  or  other  writing  relied  on  as 
the  cause  of  action ;  otherwise,  the  action  will  be  dismissed. 
4  Blackf.  12.  But  any  statement,  however  short  or  infor- 


224  JUSTICES'  TREATISE. 

mal,  will  answer  the  purpose,  provided  enough  is  shown  to 
bar  another  action  for  the  same  demand.  4  Black/.  13. 

SEC.  28.  On  appeal  from  a  justice's  to  a  countv  court, 
the  record  not  showing  that  notice  of  appeal  had  been 
served  on  the  adverse  party,  appellant  may  prove  by  his 
affidavit  that  such  notice  was  in  fact  served.  Mendioca  vs. 
Orr,  16  Cal.  368. 

SEC.  29.  One  of  the  conditions  upon  which  an  appeal  is 
allowed  is  the  payment  of  the  costs  of  the  action.  McDer- 
mott  vs.  Douglass,  5  Cal.  89. 

SEC.  30.  Where  the  county  court  dismissed  the  appeal 
of  the  defendant  from  the  judgment  of  a  justice  of  the  peace, 
on  the  ground  that  the  fees  of  the  justice  had  not  been  paid, 
and  refused  t'o  allow  the  appellant  in  that  court  to  pay  the 
fees,  such  as  the  court  might  direct,  to  save  dismissal  of 
the  appeal :  Held,  that  a  justice  of  the  peace  may  refuse  to 
send  up  the  transcript  of  a  cause  tried  by  him,  unless  all 
his  legal  fees  be  first  paid  by  the  appellant.  But  if  he 
choose  to  waive  his  right  and  file  the  papers,  the  fact  that 
his  fees  have  not  been  paid  is  no  ground  for  dismissing  the 
appeal.  Bray  vs.  Redman,  6  Cal.  287. 

SEC.  31.  An  offer  to  pay  when  the  papers  are  made  out,  is 
not  sufficient  to  constitute  a  tender  of  the  fees.  The  ap 
pellant  must  tender  to  the  justice  the  amount  of  his  fees, 
unconditionally.  If  the  justice  refuses  to  state  the  exact 
amount,  then  the  appellant  should  offer  to  deposit  with  him 
such  amount  as  he  may  demand,  as  surety  for  the  fees, 
when  ascertained.  If  an  excessive  deposit  be  demanded, 
the  appellant  should  tender  the  amount  he  may  judge  suffi 
cient;  but  he  must  be  careful  to  tender  an  amount  equal  to 
the  fees;  otherwise,  his  tender  will  not  be  good.  The  jus 
tice  is  not  bound  first  to  make  out  the  papers  and  then  rely 
upon  his  fees  being  afterwards  paid;  he  is  not  bound  to 
credit  the  appellant.  People  vs.  Hamilton  et  aL,  9  Cal.  572. 

SEC.  32.  On  appeal  from  the  judgment  of  a  justice,  the 
certificate  of  the  justice  to  the  transcript  of  the  record,  that 
"the  above  is  a  transcript  of  a  judgment  on  my  docket," 
though  not  strictly  technical,  is  sufficient.  5  Eng.  249. 


APPEALS.  225 

Undertaking  en. 

SEC.  33.  An  appeal  from  a  justice's  court  shall  not  be 
effectual  for  any  purpose,  unless  an  undertaking  be  filed, 
with  two  or  more  sureties,  in  the  sum  of  one  hundred  dol 
lars,  for  the  payment  of  the  costs  on  the  appeal ;  or,  if  a 
stay  of  proceedings  be  claimed,  in  a  sum  equal  to  twice  the 
amount  of  the  judgment,  including  costs,  when  the  judg 
ment  is  for  the  payment  of  money ;  or  twice  the  value  of 
the  property,  including  costs,  when  the  judgment  is  for  the 
recovery  of  specific  personal  property,  and  shall  be  condi 
tioned,  when  the  action  is  for  the  recovery  of  money,  that 
appellant  will  pay  the  amount  of  the  judgment  appealed 
from  and  all  costs  if  the  appeal  be  withdrawn  or  dismissed, 
or  the  amount  of  any  judgment  and  all  costs  that  may  be 
recovered  against  him  in  the  said  action  in  the  county  court. 
When  the  action  is  for  the  recovery  of  specific  personal 
property,  the  undertaking  shall  be  conditioned  that  the 
appellant  will  pay  the  judgment  and  costs  appealed  from, 
and  obey  the  order  of  the  court  made  therein,  if  the  appeal 
be  withdrawn  or  dismissed,  or  any  judgment  and  costs  that 
may  be  recovered  against  him  in  said  action  in  the  county 
court,  and  will  obey  any  order  made  by  the  court  therein. 
Pr.  Act,  628 ;  Gen.  Laws,  5559. 

SEC.  34.  No  undertaking  on  appeal  is  necessary  when 
the  appeal  is  taken  by  the  county  (act  concerning  appeals, 
1856).  The  board  of  supervisors  represent  the  county  in 
legal  proceedings.  People  vs.  Board  of  Supervisors  of  Marin 
Co.,  10  Cal.  344. 

SEC.  35.  "Where  the  people  of  the  state  are  appellants 
it  is  not  necessary  to  file  the  usual  undertaking  on  appeal. 
A  state  cannot  be  denied  a  hearing  in  her  own  courts 
because  no  bond  has  been  filed  for  costs;  besides,  a  fund 
has  been  provided  by  law  for  such  cases,  so  that  the  re 
spondent  has  ample  indemnity.  People  vs.  Clingan,  5  Cal. 
391. 

SEC.  36.     The  undertaking  on  appeal  is  an  independent 
contract  on  the  part  of  the  sureties,  in  which  it  is  not  neces 
sary  that  the  appellant  should  unite.     He  is  already  bound 
by  the  judgment,  and  no  purpose  could  be  served  by  his 
29 


226  JUSTICES'  TREATISE. 

joining  with  the  sureties.  Curtis  vs.  Richards  et  al.,  9 
Cal.  38. 

SEC.  37.  In  an  undertaking  on  appeal  the  names  of  the 
sureties  need  not  appear  in  the  body  of  the  paper.  All  the 
use  of  this  recital  would  be  to  show  who  executed  the 
paper,  and  the  signatures  sufficiently  indicate  this  fact. 
Dore  vs.  Covey,  13  Cal.  507. 

SEC.  38.  Where  an  instrument  purporting  to  be  a  bond 
on  appeal  contains  words  of  obligation,  and  has  a  scroll 
(L.S.)  opposite  the  name  of  one  of  the  signers,  and  the 
paper  is  executed  by  both,  who  contemporaneously  verify 
the  instrument  by  affidavit  as  their  bond,  it  is  enough  to 
make  it  the  deed  of  both.  Caulfield  vs.  Bates,  13  Cal.  608. 

SEC.  39.  Where  the  bond  is  more  favorable  to  the  ap 
pellee  than  the  statute  requires,  he  cannot  complain  that 
the  statute  has  not  been  followed.  Dore  vs.  Covey,  13  Cal. 
509. 

SEC.  40.  Residence  of  the  sureties  and  their  occupation, 
and  that  the  penalty  must  be  double  the  amount  of  the 
judgment,  are  directory  provisions,  and  non-compliance 
with  them,  intended  for  the  benefit  of  the  respondent,  does 
not  vitiate  the  undertaking.  Dore  vs.  Covey,  13  Cal.  502. 

SEC.  41.  An  appeal  bond  will  be  so  construed  as  to  carry 
out  the  obvious  intention  of  the  parties.  To  support  the 
condition  of  a  bond,  the  court  will  transpose  or  reject  in 
sensible  words,  and  construe  it  according  to  the  obvious 
intent  of  the  parties.  There  are  many  cases  on  the  con 
struction  of  bonds,  where  the  letter  of  the  condition  has 
been  departed  from,  to  carry  into  effect  the  intention  of  the 
parties.  Where  the  name  of  the  obligor  of  the  bond  was 
inserted  in  the  condition,  instead  of  that  of  the  obligee,  it 
was  held  not  material,  as  it  was  a  mistake  of  such  a  charac 
ter  as  not  to  affect  the  obligation  of  the  bond,  and  was 
explained  by  its  whole  tenor  and  effect.  Swain  vs.  Graves, 
8  Cal.  551. 

SEC.  42.  Action  to  recover  a  mining  claim  by  plaintiffs 
before  a  justice.  Judgment  for  defendant  for  costs.  Plaint 
iffs  appeal  to  the  county  court.  Defendant  moves  for  a 
dismissal  of  the  appeal,  on  the  ground  that  the  undertaking 
of  plaintiffs  is  insufficient.  Plaintiffs  then  offer  to  file  a 


APPEALS.  227 

good  one.  Afterwards  the  court  refuses  permission,  and 
enters  judgment  of  dismissal,  from  which  plaintiffs  appeal. 
The  plaintiffs  having  offered  to  amend  the  bond  before  the 
motion  to  dismiss  was  determined,  they  should  have  been 
permitted  to  do  so.  Cunningham  et  al.  vs.  Hopkins,  8  Cal. 
33. 

SEC.  43.  In  the  case  of  Coulter  vs.  Stark  (7  Cal.  244),  the 
following  points  were  decided  : 

1st.  When  a  justice  errs  in  the  exercise  of  jurisdiction, 
and  not  by  assuming  jurisdiction,  the  writ  of  certiorari  is  not 
the  proper  remedy. 

2d.  A  justice  of  the  peace  may  grant  appeals,  and  may 
grant  a  stay  of  proceedings  thereon. 

3d.  Where  the  appeal  is  taken  in  good  faith,  the  appel 
late  court  will  always  permit  a  new  undertaking  to  be  filed, 
when  the  original  is  defective. 

4th.  Service  of  a  notice  of  appeal  upon  the  opposite  at 
torney  is  always  sufficient. 

SEC.  44.  In  the  supreme  court,  the  point  was  raised  that 
the  county  court  had  no  jurisdiction,  because  there  was  no 
appeal  bond,  as  required  by  the  statute,  to  effect  an  appeal 
from  justices  of  the  peace  to  that  court.  The  court  say : 
This  objection  was  not  made  in  the  court  below,  and  it 
comes  here  too  late.  If  it  had  been  made  in  proper  time 
before  the  county  court,  it  would  have  been  the  duty  of  the 
presiding  judge  to  hear  the  excuse  of  the  party  failing  to 
produce  it,  and  if  sufficient,  to  have  allowed  him  then  to  file 
a  bond.  Howard  et  al.  vs.  Harmon,  5  Cal.  78,  79. 

SEC.  45.  An  appeal  bond  was  filed  with  a  justice  and  the 
proper  affidavit  of  the  two  sureties  was  made  before  him. 
The  bond  was  not  marked  "approved,"  by  the  justice,  but 
was  received  by  him  without  objection  at  the  time.  On 
the  next  day  the  justice  indorsed  upon  the  bond  ' '  not  ap 
proved  "  :  Held,  the  justice  should  have  rejected  the  bond, 
promptly.  Under  the  circumstances  the  bond  must  be  con 
sidered  as  approved.  People  vs.  Hamilton  et  al.,  9  Cal.  572. 

SEC.  46.  An  undertaking  on  appeal,  conditioned  for  the 
payment  of  what  the  judgment  creditor  has  no  legal  right  to 
receive,  is  not,  as  to  such  creditor,  binding  upon  the  sure 
ties.  Whiting  vs.  Allen  et  al.,  21  Cal.  233. 


228  JUSTICES'  TEEATISE. 

SEC.  47.  Where  in  a  action  on  an  appeal  bond,  condi 
tioned  to  pay  the  judgment  appealed  from  if  the  same  should 
be  affirmed  by  the  appellate  court,  it  appeared  that  the  judg 
ment  appealed  from  was  reversed,  with  directions  to  enter  a 
different  judgment:  Held,  that  the  conditions  of  such  bond 
were  not  broken,  and  that  no  action  would  lie  thereon. 
Chase  vs.  Hies  et  al.,  10  Cal.  517. 

Justification  of  Sureties. 

SEC.  48.  The  undertaking  shall  be  accompanied  by  the  affi 
davits  of  the  sureties,  that  they  are  residents  of  the  coun 
ty,  and  are  each  worth  the  amount  specified  in  the  under 
taking,  over  and  above  all  their  just  debts  and  liabilities, 
exclusive  of  property  exempt  from  execution;  or  the  bond 
shall  be  executed  by  a  sufficient  number  of  sureties  who  can 
justify,  in  the  aggregate,  to  an  amount  equal  to  double  the 
amount  specified  in  the  bond,  or  a  deposit  of  the  amount  of 
the  judgment,  including  all  costs  appealed  from,  or  of  the 
value  of  the  property,  including  all  costs  in  actions  for  the 
recovery  of  specific  personal  property,  with  the  justice. 
And  such  deposit  shall  be  equivalent  to  the  filing  of  the 
undertaking  in  this  act  mentioned;  and  in  such  cases  the 
justice  shall  transmit  the  money  to  the  clerk  of  the  county 
court,  to  be  by  him  paid  out  on  the  order  of  the  court.  The 
adverse  party  may,  however,  except  to  the  sufficiency  of  the 
sureties  within  five  days  after  the  filing  of  the  undertaking, 
and  unless  they  or  other  sureties  justify  before  the  justice 
before  whom  the  appeal  is  taken,  within  five  days  thereafter, 
upon  notice  to  the  adverse  party,  to  the  amounts  stated  in 
their  affidavits,  the  appeal  shall  be  regarded  as  if  no  such 
undertaking  had  been  given.  Pr.  Act,  628;  Gen.  Laws, 
5559. 

SEC.  49.  Where  a  party  gave  notice  of  the  justification 
of  the  sureties  on  an  undertaking  before  the  clerk  of  the 
court,  on  a  day  named,  between  the  hours  of  ten  A.M.  and 
five  P.M.  of  that  day,  and  the  sureties  appeared  upon  such 
notice  soon  after  ten  of  that  day :  Held,  that  the  clerk  acted 
properly  in  refusing  to  take  their  justification,  the  opposite 
party  being  absent  until  the  last  hour  stated  in  the  notice. 
The  defendant  should  have  designated  an  hour  at  which  he 


APPEALS.  229 

would  have  been  present  with  his  sureties,  and  he  could  not 
by  his  failure  to  do  so  compel  the  attendance  of  the  oppo 
site  party  the  entire  day  in  waiting  for  his  appearance. 
Lower  vs.  Rnox,  10  Cal.  480,  481. 

*SEC.  50.  A  motion  is  made  in  this  case  to  dismiss  the 
appeal.  The  notice  of  appeal  was  filed  on  the  eighteenth  of 
April,  1860.  An  undertaking  was  filed  on  the  same  day, 
and  on  the  twentieth  of  April  a  notice  was  served  excepting 
to  the  sufficiency  of  the  sureties.  A  notice  was  thereupon 
given  that  on  the  twenty-fifth  of  the  same  month  the  sure 
ties  would  justify  before  the  county  judge  of  Sacramento 
county.  Certain  orders  were  afterwards  made  extending  the 
time  of  justification  to  the  first  of  May.  It  was  necessary 
that  the  sureties  should  justify  within  five  days  after  the 
notice  of  exception,  and  the  failure  to  do  so  rendered  the 
appeal  a  nullity.  The  statute  provides  that  upon  a  failure 
to  justify  within  the  time  limited,  the  appeal  shall  be  re 
garded  as  if  *no  undertaking  had  been  given.  The  orders 
extending  the  time  were  in  contravention  of  this  provision, 
and  were  therefore  inoperative.  The  statute  is  peremptory 
in  its  terms,  and  the  consequence  of  a  violation  is  that  the 
party  loses  the  benefit  of  his  appeal.  See  Elliott  vs.  Chap 
man  and  Shaw  vs.  Eandall  (April  T.  1860).  "It  has  been 
repeatedly  held,"  says  Sedgwick,  "that  courts  have  no  dis 
pensing  power,  even  in  matters  of  practice,  when  the  legis 
lature  has  spoken.  Thus,  where  a  statute  declares  that  a 
judge  at  chambers  may  direct  a  new  trial,  if  application  be 
made  within  ten  days  after  judgment,  it  has  been  said  that 
he  can  no  more  enlarge  the  time  than  he  can  legislate  in 
any  other  matter.  When  a  statute  fixes  the  time  within 
which  an  act  must  be  done,  the  courts  have  no  power  to 
enlarge  it,  although  it  relates  to  a  mere  question  of  prac 
tice.  So,  where  an  appeal  to  be  valid,  must  be  made  within 
ten  days,  it  is  void  if  taken  on  the  eleventh."  Sedg.  on  Con. 
322.  It  follows  that  the  motion  to  dismiss  must  be  granted, 
but  the  appellant  is  not  precluded  from  the  right  to  prose 
cute  another  appeal.  17  Cal.  122. 

SEC.  51.  If  an  execution  be  issued  on  the  filing  of  the 
undertaking  staying  all  proceedings,  the  justice  shall,  by 
order,  direct  the  officer  to  stay  all  proceedings  on  the  same. 


230  JUSTICES'  TREATISE. 

Such  officer  shall,  upon  payment  of  his  fees  for  services 
rendered  on  the  execution,  thereupon  relinquish  all  prop 
erty  levied  upon,  and  deliver  the  same  to  the  judgment 
debtor,  together  with  all  moneys  collected  from  sales  or 
otherwise.  If  his  fees  be  not  paid,  the  officer  may  retain 
so  much  of  the  property  or  proceeds  thereof,  as  may  be 
necessary  to  pay  the  same.  Pr.  Act,  629  ;  Gen.  Laws,  5560. 
SEC.  52.  The  following  is  a  form  of  notice  of  appeal: 

Notice  of  Appeal— Civil  Cases — Form  No 

In  the  justice's  court  of township,  in  the  ,  county  of  , 

state  of 

1 

plaintiff, 
•     against 


defendant. 
You  will  please  take  notice,  that  the   defendant  in  the  above  entitled 

action  hereby  appeals  to  the  county  court  of ,  county  of ,  from 

fhe  judgment  therein  made  and  entered  in  the  said  justice's  court,  on  the 
....  day  of  . . . .,  A.D.  18. .,  in  favor  of  said  plaintiff,  and  against  said  defend 
ant,  and  from  the  whole  of  said  judgment.  This  appeal  is  taken  on  ques 
tions  of  both  law  and  fact  [or,  "on  questions  of  law"]. 

Dated ,  A.D.  18.. 

Yours,  etc. ; 

,  Attorney  for  appellant. 

To  the  justice  of  said  justice's  court  and  ,  esq.,  attorney  for 

respondent. 
Due  service  of  the  within  notice  is  hereby  acknowledged ,  .18 . . 


Attorney  for  respondent. 
Subscribed  and  sworn  to  before  me,  this  ....  day  of ,  A.D.  18. . 


Justice  of  the  peace  ....  township. 

Appeal  Bond. 
In  the  justice's  court  of  the township,  in  the  county  of ,  state 


of 


Know  all  men  by  these  presents :  That  we, ,  principal, 

and and ,  sureties,  are  held  and  firmly  bound  unto  .... 

....  in  the  sum  of dollars,  lawful  money  of  the  United  States  of 

America,  to  be  paid  to  the  said •.  ,  his  executors,  administrators 

or  assigns ;  for  which  payment,  well  and  truly  to  be  made,  we  bind  our 
selves,  our,  and  each  of  our  heirs,  executors  and  administrators,  jointly  and 
severally,  firmly  by  these  presents. 

Sealed  with  our  seals  and  dated  this day  of ,  A.D.  18 ... 

The  condition  of  the  above  undertaking  is  such,  that  whereas  the  said 
obtained  a  judgment  against  the  said  ,  before 


APPEAKANCE.  231 

............  ,  esq.,  justice  of  the  peace  of  the  ....  township,  in  the  county 

of  ......  ,  state  of  ......  ,  on  the  ----  day  of  ......  ,  A.r>.  18  .  .  ,  for  the  sum 

........   dollars  damages,  and   ........  dollars  costs  ;  and  whereas,  the 

above  bounden  ............  is  desirous  of  appealing  from  the  decision  of 

said  justice  to  the  county  court  of  the  said  county  of  ......  ,  and  a  stay  of 

proceedings  is  claimed.     Now,  if  the  above  bounden  ............  shall  well 

and  truly  pay,  or  cause  to  be  paid,  the  amount  of  the  said  judgment  and  all 
costs,  and  obey  any  order  the  said  county  court  may  make  therein,  if  the  said 
appeal  be  withdrawn  or  dismissed,  or  pay  the  amount  of  any  judgment  and 
all  costs  that  may  be  recovered  against  the  said  appellant,  in  the  said  county 
court,  and  obey  any  order  the  said  court  may  make  therein,  then  this  obliga 
tion  to  be  null  and  void;  otherwise  to  remain  in  full  force  and  virtue. 


Justification  of  Sureties. 

State  of  ..........        j 

City  and  County  of  ......  J  Sk 

............  and  ............  ,  the  sureties  in  the  within  undertaking, 

being  duly  sworn,  say,  each  for  himself,  and  not  one  for  the  other,  that  he 
is  a  resident  of  said  city  and  county  of  ......  ,  and  that  he  is  a  [house  or 

freeholder]  within  the  same,  and  is  worth  the  amount  specified  in  the  within 
undertaking,  over  and  above  all  his  just  debts  and  liabilities,  exclusive  of 
property  exempt  from  execution. 


Subscribed  and  sworn  to  before  me,  this day  of    ,  A.D.  18. . 

Justice  of  the  peace. 


CHAPTER    XXVI. 


APPEAEANCE. 


SECS.  SECS. 


DEFENDANT'S  APPEARANCE,  ETC.  1-  3 

FORM  OF  NOTICE 4 

DEFENDANT'S  DEFAULT 5 

FORM  OF  ENTRY  OF  DEFAULT  ...  6 
FAILURE  OF    AT.T.   DEFENDANTS 


TO  APPEAR . 


FAILURE  OF  ONLY  SOME  OF  DE 
FENDANTS  TO  APPEAR 8-9 

FAILURE  OF  EITHER  PARTY  TO 

APPEAR 10-11 

APPEARANCE  BY  ATTORNEY.  .      .  12-14 


Defendant's  Appearance  and  Notice  thereof. 

SECTION  1.  The  defendant  may  appear  in  the  action  by 
demurrer  or  answer  at  any  time  after  service  of  summons 
upon  him,  and  shall  notify  the  plaintiff,  by  written  notice, 
of  such  appearance.  Stats.  1867-1868,  552. 


232  JUSTICES'  TKEATISE. 

SEC.  2.  A  party  ought  not  to  be  allowed  the  benefit  of 
any  proceeding,  unless  he  also  assumes  the  responsibility 
of  it.  His  appearance  for  one  purpose  is  a  good  appear 
ance  to  the  action.  4  Cal.  306. 

SEC.  3.  But  an  appearance  merely  for  the  purpose  of 
asking  an  adjournment  is  not'  an  appearance  to  the  action, 
and  where  a  judgment  is  rendered  against  the  defendant  in 
such  case,  he  may  bring  a  cerliorari,  as  upon  a  judgment 
rendered  in  his  absence.  2  Harr.  454. 

Form  of  Notice. 
SEC.  4.     The  following  is  a  form  of  notice  : 

In  the  justice's  court  in  and  for  ....  township,  county  of  .  . . . ,  state  of  .... 
against  '      > 


The  plaintiff  in  the  above  entitled  cause  will  hereby  take  notice  that  I  have 
appeared  in  said  action  by  answer  [or,  "demurrer"],  and  will  be  ready  for 
trial  on  the day  of ,  18 ... 


By  his  att'y, 

Defendant's  Default. 

SEC.  5.  If  any  of  the  defendants  shall  fail  to  answer  or 
appear  in  the  action  within  the  time  prescribed  in  the  sum 
mons,  such  default  shall  be  entered  by  the  justice  in  his 
docket.  Stats.  1867-1868,  552. 

Justice's  Entry  of  Default. 

SEC.  6.  The  following  is  a  form  of  justice's  entry  of  de 
fault  : 


against 


In  this  action  the  defendant, ,  having  been  regularly  served  with 

process,  and  having  failed  to  appear  and  answer  the  plaintiff's  complaint  on 
file  herein,  and  the  time  allowed  by  law  for  answering  having  expired,  the 

default  of  said  defendant, ,  in  the  premises  is  herely  duly  entered 

according  to  law. 

Attest  my  hand  this day  of ,  A.D.  18. .. 

,  Justice. 

For  form  of  judgment  by  default  see  JUDGMENT. 


APPEAEANCE.  233 

Failure  of  All  Defendants  to  Appear. 

SEC.  7.  If  all  of  the  defendants  shall  fail  to  appear  or 
answer  within  the  time  prescribed  in  the  summons,  the 
justice  shall  thereupon  enter  judgment  against  them  for  the 
amount  demanded  in  the  summons,  where  the  action  is 
brought  upon  a  contract  for  the  direct  payment  of  money ; 
and  in  all  other  cases  shall  hear  the  proofs  and  give  judg 
ment  in  accordance  with  the  pleadings  and  proofs.  Stats. 
1867-1868,  552. 

Failure  of  only  Some  of  Defendants  to  Appear. 

SEC.  8.  Where  all  the-  defendants  served  with  process 
shall  have  appeared,  or  some  of  them  have  appeared,  and 
the  remaining  defendants  have  made  default,  the  justice 
may  proceed  to  try  the  cause,  or  upon  good  cause  shown 
by  either  party,  may  fix  the  day  for  "trial  on  any  subse 
quent  day  not  more  than  ten  days  thereafter.  Stats.  1867- 
1868,  552. 

SEC.  9.  Where  the  record  shows,  in  general  terms,  the 
appearance  of  parties,  the  appearance  will  be  couiined  to 
those  parties  served  with  process.  13  Gal.  558. 

Failure  of  Either  Party  to  Appear. 

SEC.  10.  If  either  party  shall  fail  to  appear  at  the  time 
fixed  for  trial,  or  at  the  time  to  which  the  trial  has  been 
adjourned,  the  trial  may  proceed  at  the  request  of  the 
adverse  party,  and  judgment  shall  be  rendered  in  con 
formity  with  the  pleadings  and  proofs.  ,  Stats.  1867-1868, 
552. 

SEC.  11.  If  the  plaintiff  or  some  person  on  his  behalf 
does  not  appear  on  the  return  of  process  before  a  justice,  it 
is  a  discontinuance ;  and  if  the  justice  proceed  in  the  cause 
it  is  error,  even  though,  on  the  return  of  process,  the  note 
on  which  the  suit  was  brought  was  .delivered  to  the  justice 
with  a  request  of  the  defendant  indorsed  upon  it  to  enter 
judgment  against  him.  9  Johns.  140. 

Appearance  by  Attorney. 

SEC.  12.     The  appearance  of  his  attorney  is  equivalent 
30 


'   JUSTICES    TKEATISE. 

to  the  appearance  of  the  party  in  an  action  before  a  justice. 
2  Penn.  658. 

SEC.  13.  A  justice  is  authorized  to  proceed  with  a  trial 
where  an  individual  appears  as  attorney  for  the  defendant, 
makes  oath  that  he  is  authorized  to  appear  to  answer  to  the 
suit,  asks  for  no  adjournment,  but  procures  a  subpena  for 
witnesses  for  the  defendant  and  proceeds  to  trial,  and 
makes  no-  objections  to  the  proceedings.  If  the  attorney 
so  appearing  has  no  authority,  the  remedy  of  the  defend 
ant  is  against  the  attorney.  18  Barb.  (N.  Y.)  387. 

SEC.  14.  A  suit  haying  been  instituted  in  the  name  of 
the  plaintiffs  by  an  attorney  of  the  court,  it  is  to  be  pre 
sumed,  prima  facie,  that  they  authorized  the  attorney  to 
appear  and  prosecute.  It  is  not  matter  in  abatement  that 
the  plaintiffs,  or  either  one  of  them,  have  not  given  this 
authority.  The  proper  mode  of  procedure,  if  the  suit  was 
not  authorized,  is  for  the  defendant  to  move  the  court, 
upon  proper  affidavits,  to  dismiss  the  suit,  upon  the  ground 
that  it  was  not  authorized  by  those  in  whose  names  it  was 
brought.  If  the  attorney,  on  such  a  motion  and  after  no 
tice  of  it,  fails  to  show  his  authority,  the  court  may  dismiss 
the  case.  But  it  would  lead  to  great  confusion  to  hold  that 
the  parties  may  be  heard  in  the  progress  of  a  case  on  trial 
otherwise  than  through  the  attorneys  appearing  for  them 
on  the  record.  If  a  release  or  other  paper  has  been  exe 
cuted  by  one  of  the  parties,  this  may  be  pleaded,  and  its 
legal  effect  accorded  to  it ;  but  it  is  not  admissible,  upon  a 
mere  suggestion  at  the  bar  by  the  adverse  party  or  his 
attorney,  to  deny  the  right  of  a  party  to  appear  by  the 
attorney  of  record,  or  to  deny  that  the  attorney  so  appear 
ing  has  full  authority  to  prosecute  the  suit.  See  HcKer- 
nan  vs.  Patrick,  4  How.  (Miss.)  336,  and  the  cases  there 
cited.  17  Cat  432,  433. 


ARREST. 


235 


CHAPTER   XXVII. 


AEEEST. 


SECS. 

IN  WHAT  CASES  THE  DEFENDANT 

MAY  BE  ABBESTED  ........     1-3 

IN  WHAT  CASES  THE  DEFENDANT 

CANNOT  BE  AEEESTED  ...... 

AFFIDAVIT    AND    UNDEKTAKING 

BEFOEE  ORDEB  OF  AEBEST  . 
FORM  OF  AFFIDAVIT  FOE  ORDER 

OF    AEEEST,    KEMOVAL    OF 

PROPERTY,  ETC  ............  14-15 

FORM  OF  AEEEST  OF  FBAUDULENT 

DEBTOB  ................. 

FORM  OF  UNDERTAKING  ON  OR 

DER  OF  ARREST  ........... 

FORM  OF  APPROVAL  OF  UNDER 

TAKING    TO    BE    INDORSED 

THEREON  ................ 

FORM  OF  ORDER  OF  AEBEST  TO 
BE  INDORSED  ON  SUMMONS  . 

WHERE  DEFENDANT  UPON  BEING 
ARRESTED  SHALL  BE  TAKEN. 


SECS. 


4-8 


9-13 


11.5 


17 


18 


19 


20 


FORM  OF  AFFIDAVIT  OF  DEFEND 
ANT  THAT  JUSTICE  IS  A  MA 
TERIAL  WITNESS  IN  THE  AC 
TION 21 

OFFICER  TO  GIVE  NOTICE  TO 
PLAINTIFF  AND  SUBSCRIBE 
CERTIFICATE 22 

FORM  OF  NOTICE  BY  OFFICER  TO 

PLilNTIFF  THAT  ARREST  HAS 

BEEN  MADE 23 

FORM  OF  CERTIFCATE  TO  BE  IN 
DORSED  ON  SUMMONS 24 

DUTIES  OF  OFFICER  AND  RIGHTS 

OF  DEFENDANT 25 

FORM  OF  UNDERTAKING  BY  DE 
FENDANT  ON  ARREST 26 

WHAT  NECESSARY  TO  JUSTIFY  EX 
ECUTION  AGAINST  THE  PER 
SON  27-31 

WHEN  SURETIES  ON  DEFENDANT'S 

UNDERTAKING  ABE  LIABLE  .  32 


In  what  Cases  the  Defendant  may  be  Arrested. 

SECTION  1.  The  writ  of  arrest  is  only  an  intermediate 
remedy  or  process,  to  secure  the  presence  of  the  party  until 
final  judgment.  6  Col.  61;  10  Gal.  412. 

SEC.  2.  An  order  to  arrest  the  defendant  may  be  in 
dorsed  on  a  summons  issued  by  the  justice,  and  the  defend 
ant  may  be  arrested  thereon  by  the  sheriff  or  constable,  at 
the  time  of  serving  the  summons,  and  brought  before  the 
justice,  and  there  detained  until  duly  discharged  in  the  fol 
lowing  cases  arising  after  the  passage  of  this  act: 

1st.  In  an  action  for  the  recovery  of  money  or  damages, 
on  a  cause  of  action  arising  upon  contract,  express  or  im 
plied,  when  the  defendant  is  about  to  depart  from  the  state 
with  intent  to  defraud  his  creditors;  or  where  the  action  is 
for  a  willful  injury  to  the  person,  or  for  taking,  detaining  or 
injuring,  personal  property. 

2d.  In  an  action  for  a  fine  or  penalty,  or  for  money  or 


236  JUSTICES'  TREATISE. 

property  embezzled,  or  fraudulently  misapplied,  or  con 
verted  to  his  own  use  by  an  attorney,  factor,  broker,  agent 
or  clerk,  in  the  course  of  his  employment  as  such,  or  by 
any  other  person  in  a  fiduciary  capacity. 

3d.  When  the  defendant  has  been  guilty  of  a  fraud  in 
contracting  the  debt,  or  incurring  the  obligation  for  which 
the  action  is  brought. 

4th.  When  the  defendant  has  removed,  concealed  or  dis 
posed,  of  his  property,  or  is  about  to  do  so,  with  intent  to 
defraud  his  creditors.  But  no  female  shall  be  arrested  in 
any  action.  Gen.  Laws,  5475. 

SEC.  3.  In  order  to,  give  the  court  jurisdiction  of  the 
subject  matter,  so  as  to  enable  it  to  issue  orders  or  process, 
it  is  necessary  that  the  action  should  be  commenced.  The 
practice  act  provides  that  the  defendant  may  be  arrested  in 
a  certain  class  of  cases.  Until  there  is  a  suit  instituted, 
there  can  be  no  defendant,  and  consequently  no  authority, 
under  the  statute,  to  issue  an  order  of  arrest.  6  Col.  320. 
Thus,  where  a  complaint  was  not  filed  until  two  days  after 
an  order  of  arrest  had  issued  thereupon,  the  order  of  arrest 

was  void  for  want  pf  jurisdiction.     6  Cal.  318,  321. 
> 

In  -what  Cases  the  Defendant  Cannot  be  Arrested. 

SEC.  4.  A  party  cannot  be  imprisoned  under  a  judgment 
in  a  civil  action  for  assault  and  battery.  6  Cal.  239. 

SEC.  5.  An  assault  and  battery  is  not  a  case  of  fraud,  in 
the» sense  that  that  term  is  employed  by  the  constitution; 
neither  can  it  be  made  so  by  the  legislature;  and  the  judg 
ment  is  a  debt  as  much  as  though  recovered  in  an  action  of 
assumpsit.  So  also  the  provision  in  the  practice  act  that 
the  defendant  may  be  arrested  when  the  action  is  for  willful 
injury  to  the  person,  etc.,  is  directly  in  conflict  with  the 
constitution.  6  Cal.  240. 

SEC.  6.  The  provision  in  the  practice  act  for  the  arrest 
of  a  debtor  in  certain  cases,  does  not  apply  in  the  case  of 
one  partner  sueing  to  recover  money  received  by  another. 
Thus,  A  being  the  owner  of  an  invoice  of  goods  in  the  city 
of  New  York,  sold  one-half  interest  therein  to  B,  with  an 
arrangement  that  the  latter  should  proceed  to  San  Fran 
cisco,  and  there  dispose  of  the  same  on  joint  account:  it 


ABEEST.  237 

was  held,  that  this  constituted  a  partnership  between  them, 
and  that  B  was  not  subject  to  arrest  in  an  action  by  A  to 
recover  part  of  the  proceeds  of  the  sales.  1  Col.  346. 

SEC.  7.  In  a  suit  to  recover  money  received  by  a  person 
as  agent,  he  cannot  be  arrested  without  showing  some 
fraudulent  conduct  on  his  part,  or  a  demand  on  him  by  the 
principal,  and  a  refusal  by  him  to  pay.  An  arrest  in  such 
case  is  prohibited  by  section  fifteen,  article  one,  of  the  con 
stitution.  1  CaL  438. 

SEC.  8.  When  a  party  is  once  arrested  and  discharged, 
he  cannot  be  arrested  again  in  the  same  action.  2  CaL  609. 

Affidavit  and  Undertaking  before  Order  of  Arrest. 

SEC.  9.  Before  an  order  for  an  arrest  shall  be  made,  the 
party  applying  shall  prove  to  the  satisfaction  of  the  justice, 
by  the  affidavit  of  himself  or  some  other  person,  the  facts 
on  which  the  application  is  founded.  The  plaintiff  shall 
also  execute  and  deliver  to  the  justice  a  writtpni  under 
taking,  with  two  or  more  sureties,  to  the  effect  that  if  the 
defendant  recover  judgment,  the  plaintiff  will  pay  to  him 
all  costs  that  may  be  awarded  to  the  defendant,  and  all 
damages  which  he  may  sustain  by  reason  of  the  arrest,  not 
exceeding  the  sum  specified  in  the  undertaking,  which  shall 
not  be  less  than  two  hundred  dollars.  Gen.  Laws,  5476. 

SEC.  10.  Where  the  allegations  of  a  complaint  are  made 
and  the  verdict  is  sought  in  order  that  the  judgment  may 
be  enforced  by  the  arrest  and  imprisonment  of  the  person 
of  the  defendant,  they  must  bring  the  case  clearly  within 
the  provisions  of  the  statute  authorizing  arrests,  and  must 
be  certain  and  positive,  and  not  ambiguous,  argumentative 
or  in  the  alternative.  8  Gal.  623. 

SEC.  11.  The  act  which  allows  a  party  to  be  arrested  in 
a  civil  case,  requires  the  affidavit  to  disclose  that  a  sufficient 
cause  of  action  exists,  and  that  the  case  is  one  of  those  for 
which  the  remedy  of  arrest  is  provided.  The  facts  neces 
sary  to  be  shown  must  appear  by  the  positive  averments  of 
the  affidavit ;  and  it  is  insufficient  to  refer  to  the  complaint 
or  to  any  other  paper  to  show  what  the  affidavit  ought  itself 
to  disclose,  although  it  is  positively  averred  that  such  com 
plaint  or  paper  is  true.  •  2  Col.  609. 


238  JUSTICES'  TREATISE. 

SEC.  12.  To  entitle  a  party  to  the  remedy  of  arrest,  it  is 
not  necessary  he  should  show  positively  the  commission  of 
a  fraud.  It  is  sufficient  if  the  circumstances  detailed  will 
induce,  in  a  reasonable  mind,  the  belief  that  a  fraud  was 
intended  to  be  perpetrated.  And  as  a  matter  of  practice  it 
is  safest  to  award  an  arrest,  even  in  cases  of  doubt,  because 
the  defendant  is  protected  against  the  abuse  of  the  process 
by  the  undertaking  of  the  plaintiff,  which  the  law  requires 
to  that  effect,  while  on  the  other  hand,  frauds  are  proverb 
ially  concocted  with  so  much  artfulness  and  ingenuity  as 
to  render  them  at  all  times  difficult  to  be  exposed,  and 
when  such  a  case  actually  exists,  the  plaintiff  is  remediless, 
without  the  power  of  arrest.  A  different  rule  would  almost, 
if  not  certainly,  destroy  its  efficiency  as  a  legal  remedy.  3 
Cal  378. 

SEC.  13.  An  affidavit  for  arrest  which  avers  on  informa 
tion  and  belief  that  the  defendant  has  been  guilty  of  fraud 
in  the  contracting  of  the  debt,  or  in  endeavoring  to  pre 
vent  its  collection,  in  the  terms  required  by  statute,  and 
followed  by  an  averment  of  the  facts  on  which  the  belief  is 
founded,  also  stated  on  information  and  belief,  is  sufficient. 
6  Cal  59. 

Form  of  Affidavit  for  Order  of  Arrest  for  Departing  from  State,  etc. 

SEC.  14.  The  following  is  a  form  of  affidavit  for  order  of 
arrest  for  departing  out  of  the  state  with  intent  to  defraud 
creditors  : 

In  the  justice's  court  of township,  in  the  county  of ,  state  of 


plaintiff, 
against 


defendant. 

State  of ,  I 

county  of  ,  f    k 

,  of  said  county,  being  duly  sworn,  says  :   That  he  is  the 

plaintiff  in  the  above-entitled  action  ;  that  the  cause  of  action  in  this  case 

arose  after  the  passage  of  the  act  of  the  legislature  of  the  state  of , 

entitled  "An  act  to  regiilate  proceedings  in  civil  cases  in  the  courts  of  jus 
tice  of  this  state,"  passed  ,  18.  .  ;  that  it  is  an  action  for  the  recov 
ery  of  money  or  damages  on  a  cause  of  action  arising  upon  an  express 
contract,  and  that  the  defendant  in  said  action  is  about  to  depart  from  this 
state  with  the  intent  to  defraud  his  creditors. 


AKEEST.  239 

That  the  facts  on  which  the  application  for  an  order  of  arrest  of  said 
defendant  this  day  made  is  founded  are  as  follows,  to  wit : 

Said  defendant  has  converted  all  his  property  into  cash,  at  much  less  than 

its  real  value,  and  has,  under  the  assumed  name  of  ,  secured  a 

passage  on  the  steamer ,  advertised  to  sail  this  day  for ,  and  is 

now  on  said  steamer  with  intent  to  leave  this  state.  Said  defendant,  al 
though  he  has  met  this  affiant  daily  within  the  past  week,  and  was  yester 
day  requested  to  pay  the  plaintiffs  claim,  has  never  informed  the  plaintiff 
that  he  intended  to  leave  the  state  ;  and  yesterday,  after  having  made  full 
preparations  to  leave  this  day,  promised  the  plaintiff  to  pay  to-morrow  at 
plaintiffs  office.  

Subscribed  and  sworn  to  before  me,  this  ....  day  of ,  A.D.  18. . 


Justice  of  the  peace  of  said  township. 

Form  of  Affidavit  for  Order  of  Arrest — Removal,   etc.,  of  Property 
•with  Intent  to  Defraud  Creditors. 

SEC.  15.     The  following  is  a  form  of  affidavit  for  order  of 
arrest  for  removal,  etc.,  of  property  with  intent  to  defraud 
creditors  : 
In  the  justice's  court  of  . .».  township,  in  the  county  of  . . . .,  state  of  .... 


plaintiff, 
against 


defendant. 

State  of ,  ) 

county  of ,  j    ' 

,  of  said  county,  being  duly  sworn,  says  :  That  he  is  the 

plaintiff  in  the  above-entitled  action  ;  that  the  cause  of  action  in  this  case 

arose  after  the  passage  of  the  act  of  the  legislature  of  the  state  of , 

entitled  "  An  act  to  regulate  proceedings  in  civil  cases  in  the  courts  of  jus 
tice  of  this  state,"  passed ,  18. .  ;  that  it  is  an  action  for  the  recov 
ery  of  money  or  damages  on  a  cause  of  action  arising  upon  an  express 
contract ;  that  the  said  defendant  has  removed,  concealed  and  disposed  of, 
his  property  with  intent  to  defraud  his  creditors. 

That  the  facts  on  which  the  application  for  an  order  of  arrest  of  said 
defendant  this  day  made  is  founded  are  as  follows,  to  wit : 

Said  defendant  during  last  night  had  all  his  tobacco  and  cigars,  the  exact 
value  of  which  is  unknown  to  said  affiant,  but  which  said  affiant  believes  to 
be  of  the  value  of  ....  dollars  or  thereabouts,  being  all  the  property  of  said 
defendant  not  exempt  from  execution,  conveyed  from  his  place  of  business 

on street,  in  . . . . ,  to  some  place  or  places  to  the  said  affiant  unknown, 

and  has  to-day  sold  a  large  portion  of  said  tobacco  and  cigars  for  cash  ;  and 
falsely  represents  that  he  has  only  removed  his  stock,  preparatory  to  putting 
it  into  a  new  place  of  business  which  he  is  about  to  open  in  . . . . ,  at  number 

street  in  . . . .  ;  and  said  affiant  is  informed  by  . . . . ,  the  owner  of  the 

premises  last  aforesaid,  that  the  same  have  not  been  leased  to  said  defend- 


240  JUSTICES'  TREATISE. 

ant,  and  that  said  defendant  has  never  applied  to  said for  a  lease  of 

said  premises  for  any  purpose  whatever.  

Subscribed  and  sworn  to  before  me,  this  ....  day  of  . . . . ,  A.D.  18  . 


Justice  of  the  peace  of  said  township. 

Form  of  Affidavit  for  Order  of  Arrest  of  Fraudulent  Debtor. 

SEC.  16.  ,  The  following  is  a  form  of  affidavit  for  order  of 
arrest : 

In  the  justice's  court  of township,  in  the  county  of ,  state  of 


plaintiff, 
against 


defendant.  } 

State  of  \ 

county  of \  ss> 

,  of  said  county,  being  duly  sworn,  says:  That  he  is  the  plaintiff 

in  the  above-entitled  action ;  that  the  cause  of  action  ill  this  case  arose  after 

the  passage  of  the  act  of  the  legislature  of  the  state  of ,  entitled 

"An  act  to  regulate  proceedings  in  civil  cases  in  the  courts  of  justice  of  this 

state,"  passed ,  18  ...     That  it  is  an  action  for  the  recovery  of 

money  or  damages  on  a  cause  of  action  arising  upon  an  express  contract  ; 
and  that  the  defendant  in  said  action  has  been  guilty  of  a  fraud  in  contract 
ing  the  debt  and  incurring  the  obligation  for  which  the  said  action  is 
brought.  That  the  facts  on  which  the  application  for  an  order  of  arrest  of 
said  defendant,  this  day  made  is  founded,  are  as  follows,  to  wit:  That 

defendant  came  to  the  store  of  said  plaintiff,  in township,  in  the 

county  of  ,  on  the  day  of ,  and  falsely  represented 

himself  to  be  the  owner  of  real  estate  in  said  township,  worth  ....  thousand 
dollars,  and  that  his  debts  did  not  amount  to  ....  thousand  dollars,  and 
thereupon  purchased  of  the  said  plaintiff  goods  and  merchandise  for  the  sum 

of hundred  dollars,  agreeing  to  pay  for  the  same  on  the  following  day: 

whereas,  in  truth  and  in  fact,  said  defendant  is  not  the  owner  of  any  real 
estate  whatever,  and  is  indebted  to  various  parties  in  this  state  in  over  .... 
thousand  dollars,  and  is  wholly  irresponsible.  And  said  defendant,  immedi 
ately  after  the  purchase  of  said  goods  and  merchandise,  sold  the  same  at 

less  than  one-half  their  real  value,  for  cash,  to  one   ,  in  said 

county. 


Subscribed  and  sworn  to  before  me,  this day  of ,  A.D.  18  ... 

Justice  of  the  peace  of  said  township. 


AEKEST.  241 

Form  of  Undertaking  on  Order  of  Arrest 

SEC.  17.     The  following  is  a  form  of  undertaking  on  order 
of  arrest: 
In  the  justice's  court  of ,  township  in  the  county  of ,  state  of  .... 


plaintiff, 
against 


defendant. 

Whereas,  an  order  to  arrest  the  defendant  in  the  above-entitled  action  is 
about  to  be  issued:  Now,  therefore,  we,  the  undersigned,  do  undertake,  on 
the  part  of  the  plaintiff  in  said  action,  that  if  the  said  defendant  recover 
judgment,  the  said  plaintiff  will  pay  to  said  defendant  all  costs  that  may  be 
awarded  to  the  said  defendant,  and  all  damages  which  he  may  sustain  by 
reason  of  the  said  arrest,  not  exceeding  the  sum  of  two  hundred  dollars. 

Witness  our  hands  and  seals,  in  the  county  of  .....  this  ....  day  of  .  .  .  ., 

A.D.  18  ... 


............       [L.S.] 

Stateof  ............  ,  ) 

county  of  .............   [    ' 

........  and  ........  ,  the  sureties  in  the  within  undertaking,  being 

duly  sworn,  each  for  himself,  says:  That  he  is  a  resident  and  freeholder 
within  said  county,  and  is  worth  double  the  said  sum  of  ....  hundred  dollars, 

over  and  above  all  his  debts  and  liabilities,  exclusive  of  property  exempt 
from  execution. 

Subscribed  and  sworn  to  before  me,  this  ....  day  of  ......  ,  A.D.  18  ... 


Justice  of  the  peace  of  said  township. 

Form  of  Approval  of  Undertaking  to  be  Indorsed  thereon. 

SEC.  18.     The  following  is  a  form  of  approval  of  under 
taking  to  be  indorsed  thereon : 

The  within  undertaking  is  hereby  approved  by  me,  this day  of , 

A.D.  18  ... 

Justice  of  the  peace  of  said  township. 

Filed ,  18  ...  , 

Justice  of  the  peace  of  said  township. 

Form  of  Order  of  Arrest  to  be  Indorsed  on  Summons. 

SEC.  19.     The  following  is  a  form  of  order  to  be  indorsed 
on  sunfmons: 

State  of ,  ) 

county  of J 

The  people  of  the  state  of ,  to  the  sheriff,  or  any  constable  of  said 

county,  greeting: 
You  are  hereby  commanded  to  arrest  the  within-named  defendant  and 

31 


242  JUSTICES'  TREATISE. 

bring  him  before  me  forthwith  (at  my  office  in  said  township),  to  answer 
the  plaintiff's  complaint,  tiled  in  my  office. 
Given  under  my  hand,  this  ....  day  of A.D.  18  ... 


Justice  of  the  peace  of  said  township. 

"Where  Defendant  upon  being  Arrested  snail  be  taken. 

SEC.  20.  The  defendant,  immediately  upon  being  arrest 
ed,  shall  be  taken  to  the  office  of  the  justice  who  made  the 
order,  and  if  he  be  absent  or  unable  to  try  the  action,  or  if 
it  be  made  to  appear  to  him  by  the  affidavit  of  defendant 
that  he  is  a  material  witness  in  the  action,  the  officer  shall 
immediately  take  the  defendant  before  the  next  justice  of 
the  city  or  township,  who  shall  take  cognizance  of  the 
action  and  proceed  thereon,  as  if  the  summons  had  been 
issued  and  the  order  of  arrest  made  by  him.  Gen.  Laivs, 
5477. 

Form  of  Affidavit  of  Defendant  that  Justice  is  a  Material  "Witness 
in  the  Action. 

SEC.  21.  The  following  is  a  form  of  affidavit  of  defendant 
that  justice  is  a  material  witness  : 

In  the  justice's  court  of  No township,  in  the  county  of ,  state 

of  .. 


plaintiff, 
against 


defendant. 


State  of 


j-  88. 


county  of 

,  of  said  county,  being  duly  sworn,  says :    That  he  is 

the  defendant  in  the  above  entitled  action;  that ,  esq.,  one  of 

the  justices  of  the  peace  of  the  above-named  township,  and  the  justice  who 
•made  the  order  under  which  said  defendant  has  been  arrested,  is  a  material 

witness  in  said  action;  that  said was  present  and  heard  said  defendant, 

on  the   ....  day  of ,  18 . . ,  negotiate  with for  a  lease  of 

the  premises  No street,  mentioned  in  plaintiff's  affidavit,  for 

the  said  order  of  arrest,  and  afterwards  heard  said ,  defendant, 

promise  to  pay  said dollars  a  month  for  said  premises, 

and  that  said attested  thereto.  

Subscribed  and  sworn  to  before  me,  this  ....  day  of ,  A.D.  18 . . 

Justice  of  the  peace. 


AEEEST.  243 

Officer  to  Give  Notice  to  Plaintiff  and  Subscribe  Certificate. 

SEC.  22.  The  officer  making  the  arrest  shall  immediately 
give  notice  thereof  to  the  plaintiff,  or  his  attorney  or  agent, 
and  indorse  on  the  summons,  and  subscribe  a  certificate, 
stating  the  time  of  serving  the  same,  the  time  of  the  arrest, 
and  of  his  giving  notice  to  the  plaintiff.  Gen.  Laws,  5478. 

Form  of  Notice  by  Officer  to  Plaintiff  that  Arrest  has  been  Made. 

SEC.  23.  The  following  is  a  form  of  notice  that  arrest 
has  been  made :  * 

In  the  justice's  court  of  No township,  in  the  county  of ,  state 

of  .. 


plaintiff, 
against 


defendant. 

To  Mr ,  plaintiff  [  or,  to  the  ' '  attorney, "  or, "  agent ' '  of  the  plaintiff  ] : 

Please  take  notice,  that  the  defendant  in  the  above  entitled  action  has 
been  arrested,  and  is  now  held  under  arrest  by  me. 


Constable  of  township  No 

[Date.] 

Form  of  Certificate  to  be  Indorsed  oil  Summons. 

SEC.  24.     The  following  is  the  form  of  certificate  to  be 
indorsed  on  summons : 

I  hereby .  certify  that  I  have  served  the  foregoing  order  by  arresting  and 

bringing  into  court  the  within-named  defendant,  this  ....   day  of , 

A.  D.  18 . . ,  and  that  I  have  given  notice  thereof  to  the  within-named  plaintiff 
this day  of ,  A.D.  18. . 


Constable  of  township  No 

Duties  of  Officer  and  Rights  of  Defendant. 

SEC.  25.  The  officer  making  an  arrest  shall  keep  the 
defendant  in  custody  until  duly  discharged  by  order  of 
the  justice.  Gen.  Laics,  5479. 

The  defendant  under  arrest,  on  his  appearance  with  the 
officer,  may  demand  a  trial  immediately;  and,  upon  such 
demand  being  made,  the  trial  shall  not  be  delayed  beyond 
three  hours,  except  by  the  trial  of  another  action  pending 
at  the  time ;  or,  he  may  have  an  adjournment,  and  be  dis 
charged  on  giving  bail,  as  provided  in  the  next  section.  An 


244  JUSTICES'  TREATISE. 

adjournment  at  the  request  of  the  plaintiff,  beyond  three 
hours,  shall  discharge  the  defendant  from  arrest,  but  the 
action  may  proceed  notwithstanding  ;B  and  the  defendant 
shall  be  subject  to  arrest  on  the  execution  in  the  same 
manner  as  if  he  had  not  been  so  discharged.  Gen.  Laws, 
5480. 

If  the  defendant  on  his  appearance  demand  an  adjourn 
ment,  the  same  shall  be  granted,  on  condition  that  he  exe 
cute  and  file  with  the  justice  an  undertaking,  with  two  or 
njore  sufficient  sureties,  to  be  approved  by  the  justice,  to 
the  effect  that  he  will  render  himself  amenable  to  the  pro 
cess  of  the  court  during  the  pendency  of  the  action,  and 
such  as  may  be  issued  to  enforce  the  judgment  therein ;  or, 
that  the  sureties  will  pay  to  the  plaintiff  the  amount  of  any 
judgment  which  he  may  recover  in  the  action.  On  filing 
the  undertaking  specified  in  this  section,  the  justice  shall 
order  the  defendant  to  be  discharged  from  custody.  Gen. 
Laws,  5481. 

Form  of  Undertaking  by  Defendant  on  Arrest. 

SEC.  26.  The  following  is  a  form  of  undertaking  by  de 
fendant  on  arrest : 

In  the  justice's  court  of  ....  township,  No.  . . ,  in  the  county  of   . . . . ,  state 

of  .. 


plaintiff, 
against 


defendant. 

Whereas,  the  defendant  in  the  above-entitled  action  has  been  arrested  at  the 
suit  of  the  plaintiff  in  said  action,  and  has  demanded  an  adjournment  of  the 
trial  :  Now,  therefore,  we,  the  undersigned,  do  undertake,  on  the  part  of  the 
said  defendant,  that  he  will  render  himself  amenable  to  the  process  of  the 
court  during  the  pendency  of  the  said  action,  and  such  as  may  be  issued  to 
enforce  the  judgment  therein  ;  or,  that  we  will  pay  to  the  plaintiff  the  amount 
of  any  judgment  which  he  may  recover  in  said  action. 

Witness  our  hands  and  seals,  in  the  county  of  ----  ,  this  ----  day  of  ----  , 
A.D.  18... 


State  of  ......  } 

county  of  ......  \ 

............  and  ............  ,  the  sureties  in  the  within  undertaking, 

being  duly  sworn,  each  for  himself,  says  :  That  he  is  a  resident  and  ...... 


ARKEST.  245 

holder  within  said  county,  and  is  worth  the  sum  of  ...........  dollars, 

over  and  above  all  his  debts  and  liabilities,  exclusive  of  property  exempt  from 
execution. 


What  Necessary  to  Justify  Execution  against  the  Person. 

SEC.  27.  The  question  of  fraud  must  be  submitted  to  the 
jury,  except  so  far  as  may  be  necessary  to  authorize  the  ar 
rest  pending  the  action.  To  justify  execution  against  the 
person,  which  may  be  followed  by  imprisonment,  an  issue 
must  be  framed  and  be  determined  like  issues  of  fact  raised 
upon  the  pleadings.  Fraud  is  an  offense  involving  moral 
turpitude,  and  is  followed  by  imprisonment  not  merely  as  a 
means  of  enforcing  payment,  but  also  as  a  punishment,  and 
it  would  indeed  be  strange  if,  on  a  mere  question  of  indebt 
edness,  the  right  to  a  trial  by  a  jury  should  be  held  sacred 
and  inviolate,  and  yet  such  trial  be  denied  upon  a  question 
involving  a  possible  loss  of  character  and  liberty.  This 
latter  question  cannot  be  tried  upon  affidavits  where  the 
accuser  is  also  witness,  where  the  affidavits  are  not  present, 
and  no  cross-examination  of  witnesses  is  allowed.  10  Cal. 
412. 

SEC.  28.  To  authorize  a  judgment  convicting  the  defend 
ant  of  fraud,  the  facts  upon  which  the  charge  is  based  must 
be  specifically  alleged  in  the  complaint.  A  judgment  is  the 
determination  of  the  rights  of  the  parties  upon  the  facts 
pleaded,  and  it  cannot  in  any  event  exceed  the  relief  war 
ranted  by  the  case  stated  in  the  complaint.  10  Cal.  412. 

SEC.  29.  Execution  against  the  person,  unlike  an  execu 
tion  against  the  property  of  the  defendant  which  follows, 
as  a  matter  of  course,  upon  a  money  judgment,  can  only 
issue  upon  direction  of  the  court  to  that  effect,  based  upon 
the  special  facts  found,  and  such  facts  cannot  be  considered 
by  the  jury  unless  averred  by  the  pleadings.  Side  issues 
upon  affidavits  are  not  the  issues  upon  which  juries  pass. 
The  arrest  upon  affidavit  is  only  intended  to  secure  the 
presence  of  the  defendant  until  final  judgment,  and  in  order 
to  detain  and  imprison  his  person  afterwards  the  fraud  must 
be  alleged  in  the  complaint,  be  passed  upon  by  the  jury 
and  be  stated  in  the  judgment.  10  Cal.  412. 


246  JUSTICES'  TREATISE. 

SEC.  30.  In  nearly  every  case  in  which  an  arrest  is 
allowed  by  the  statute,  the  facts  authorizing  the  arrest  also 
constitute  the  cause  of  the  action,  and,  of  course,  must 
necessarily  be  stated  in  the  complaint.  In  the  few  in 
stances  where  the  circumstances  authorizing  an  arrest  occur 
subsequently  to  the  filing  of  the  complaint,  application 
should  be  made  to  the  court  either  to  amend  the  original  or 
to  file  a  supplemental  complaint,  so  as  to  set  forth  the  facts 
upon  which  execution  against  the  person  of  the  defendant 
will  be  asked  in  the  enforcement  of  the  judgment  sought. 
By  requiring  the  charges  to  be  stated  in  the  complaint, 
the  rights  of  the  defendant  will  be  fully  guarded.  He 
can  then  meet  the  charges  and  have  a  fair  opportunity  of 
defending  himself  by  a  trial  before  the  jury.  There  may 
be  some  inconvenience  in  blending,  in  the  same  trial,  a 
question  of  indebtedness  and  a  question  of  fraud,  but  there 
is  no  way  of  avoiding  this  and  giving  full  protection  to 
the  defendant.  A  special  finding  on  the  question  of  fraud 
should  be  always  taken,  so  as  to  keep  it  as  distinct  as  pos 
sible  from  the  main  subject  of  controversy.  10  Cal.  412, 
413. 

SEC.  31.  The  facts  on  which  the  writ  of  arrest  is  based 
must  be  affirmatively  found,  and  the  fraud  stated  in  the 
judgment,  in  order  to  authorize  an  arrest  on  final  process. 
6  Cal.  61. 

"When  Sureties  on  Defendant's  Undertaking  are  Liable. 

SEC.  32.  The  sureties  on  the  bail  bond  of  a  defendant, 
arrested  in  a  civil  action,  are  not  bound  to  surrender  the 
defendant  within  ten  days  after  judgment  against  him, 
unless  the  plaintiff  takes  such  measures  as  would  author 
ize  the  officer  to  hold  defendant  in  custody.  8  Cal.  552. 
"The  law  requires  no  man  to  do  a  vain  thing,"  is  a  famil 
iar  maxim,  and  certainly  it  would  be  in  vain  to  require 
.  a  party  to  surrender  to  an  officer  having  no  power  to  de 
tain  him.  A  surrender  within  ten  days  after  execution, 
is  a  sufficient  compliance  with  the  statute.  8  Cal.  554. 


ARBITKATION.  247 

CHAPTER     XXVIII. 
PEACTICE— ABGUMENT  OF  COUNSEL. 

SECTION  1.  The  plaintiff,  always  in  contemplation  of  law, 
has  the  affirmative,  and  has  the  right  to  open  and  conclude. 
2  Col.  408. 

SEC.  2.  Thev  establishment  and  enforcement  of  rules, 
limiting  the  argument  of  counsel  to  a  certain  time,  are 
matters  resting  in  the  sound  discretion  of  the  court,  and 
are  often  necessary  to  prevent  the  time  of  the  court  from 
being  wasted  in  useless  and  unprofitable  discussion.  6  Cal. 
636. 


C  H  A  P  T  E  R     XXIX. 

ABBITEATION. 

SECTION  1.  Arbitration. — A  term  derived  from  the  nomen 
clature  of  the  Eoman  law,  is  applied  to  an  arrangement  for 
taking  and  abiding  by  the  judgment  of  a  selected  person  in 
some  disputed  matter,  instead  of  carrying  it  to  the  estab-. 
lished  courts  of  justice.  The  eighth  section  of  the  fourth 
book  of  the  Pandects  is  devoted  to  this  subject.  Almost 
all  the  advantages  as  well  as  the  defects  of  the  system  in 
modern  practice  seem  to  have  ,  been  anticipated  by  the 
Koman  jurists. 

SEC.  2.  Arbitration,  in  the  law  of  England  (according 
to  Blackstone),  is  "where  the  parties,  injured  and  injuring, 
submit  all  matters  in  dispute  concerning  any  personal  chat 
tels  or  personal  wrong,  to  the  judgment  of  two  or  more 
arbitrators,  who  are  to  decide  the  controversy;  and  if  they 
do  not  agree  it  is  usual  to  add,  that  another  person  be 
called  in  as  umpire  (imperator),  to  whose  sole  judgment  it 
is  then  referred ;  or  frequently  there  is  only  one  arbitrator 
originally  appointed." 

SEC.  3.  The  rules  which  governed  under  the  statute  (9th 
and  10th  William  III,  Cap.  15),  do  not  differ  materially 


248  JUSTICES'  TREATISE. 

from  those  under  our  own  statute.  Under  that,  as  under 
our  own,  submission  of  disputes  to  arbitration,  may  be  by 
the  consent  of  the  parties,  or  with  the  interposition  of  a 
court  of  justice;  by  rule  of  court,  or  order  of  a  judge, 
when  a  cause  is  pending,  either  by  bond,  agreement  in 
writing  or  by  parol.  A  verbal  agreement,  however,  to 
abide  by  an  award  cannot  be  made  a  rule  of  court.  The 
material  difference  between  the  statute  of  William  III  and 
our  own,  is,  that  the  former  was  confined  to  disputes  about 
personal  chattels  and  personal  wrongs,  while  our  own  law. 
authorizes  the  submission  to  arbitration  of  every  matter  of 
dispute  involving  the  right  to  property.  Although  the  right 
of  real  property  cannot  pass  by  a  mere  award,  yet  if  a  party 
be  awarded  to  convey  land  and  refuse,  he  will  be  liable  to 
an  action,  or  to  an  attachment  for  not  performing  the 
award. 

SEC.  4.  Appointment. — Usually,  a  single  arbitrator  is 
agreed  upon,  or  the  parties  each  appoint  one,  with  a  stipu 
lation,  that,  if  they  do  not  agree,  another  person,  called  an 
"umpire,"  named  or  to  be  selected  by  the  arbitrators,  shall 
be  called  in,  to  whom  the  matter  is  referred.  The  better 
rule  is,  for  the  arbitrators  to  call  in  the  assistance  of  an 
umpire  as  soon  as  they  begin  to  take  the  .subject  under 
consideration,  as  it  secures  a  decision  upon  a  single  inves 
tigation  of  the  controversy.  1  Bart.  (N.  Y.)  325  ;  4  Hand. 
(Va.)  275.  Any  person  may  be  selected,  notwithstanding 
natural  incapacity  or  legal  disability;  as,  infancy,  coverture 
or  lunacy.  1  Pet.  228 ;  26  Miss.  127. 

SEC.  5.  The  Proceedings. — Arbitrators  proceed  on  the 
reference  as  judges,  not  as  agents  of  the  parties  appointing 
them.  1  Ves.  Ch.  226 ;  9  Ves.  Ch.  69.  They  should  give 
notice  [see  form]  of  the  time  and  place  of  proceeding,  to 
the  parties  interested.  Pr.  Act,  383.  They  should  all 
conduct  the  investigation  together,  and  should  sign  the 
award  in  each  other's  presence  (4  Me.  468) ;  but  a  majority 
is  held  sufficient.  11  Johns.  (N.  Y.)  402.  In  investigating 
matters  in  dispute  they  are  allowed  the  greatest  latitude. 
13  East,  251;  6  Cow.  (N.  Y.)  103  ;'l  Hill  (N.  Y.)  319.  They 
are  judges  both  of  law  and  fact,  and  are  not  bound  by  the 
rules  of  practice  adopted  by  the  courts.  17  How.  344;  7 


AEBITRATION.  249 

Met.  (Mass.)  316,  486;  2  Johns.  Cli.  (N.  Y.)  276,  386.  They 
may  decide  according  to  equity  and  good  conscience,  and 
need  not  follow  the  law;  the  award  will  be  set  aside  only 
when  it  appears  that  they  meant  to  be  governed  by  the  law 
and  have  mistaken  it.  9  Fes.  394;  14  Cal.  271.  They 
must  administer  oaths  to  witnesses  and  hear  the  allegations 
and  evidence  of  the  parties.  Pr.  Act,  383. 

SEC.  6.  Duties  and  Powers  of. — They  cannot  delegate 
their  authority ;  it  is  a  personal  trust.  2  Aik.  Ch.  401. 
The  power  ceases  with  the  publication  of  the  award  (9  Mo. 
30),  and  death  after  publication  and  before  delivery  does 
not  vitiate  it.  21  Got.  1.  They  cannot  be  compelled  to 
make  an  award — in  which  respect  the  common  law  differs 
from  the  Roman  (Story  s  Eq.  Jur.  Sec.  1457)  ;  or  to  dis 
close  the  grounds  of  their  judgment.  19  Mo.  373.  The 
following  (statute  and  the  decisions  of  the  supreme  court 
of  this  state  interpreting  the  same,  as  far  as  questions  con 
nected  therewith  have  been  submitted,  will  be  sufficient  to 
guide  in  the  proper  appointment  and  duties  of  arbitrators  : 

SEC.  7.  Who  may  Submit  Controversy  to  Arbitration. — 
Persons  capable  of  contracting  may  submit  to  arbitration 
any  controversy  which  might  be  the  subject  of  a  civil  ac 
tion  between  them,  except  a  question  of  title  to  real  prop 
erty  in  fee  or  for  life.  This  qualification  shall  not  include 
questions  relating  merely  to  the  partition  or  boundaries  of 
real  property. 

Submission  to  Arbitration. — The  submission  to  arbitration 
shall  be  in  writing,  and  may  be  to  one  or  more  persons. 

Entered  as  an  Order  of  Court. — It  may  be  stipulated  in 
the  submission  that  it  be  entered  as  an  order  of  the  county 
court  or  of  the  district  court,  for  which  purpose  it  shall  be 
filed  with  the  clerk  of  the  county  where  the  parties,  or  one 
of  them,  reside.  The  clerk  shall  thereupon  enter  in  his 
register  of  actions  a  note  of  the  submission,  with  the  names 
of  the  parties,  the  names  of  the  arbitrators,  the  date  of  the 
submission,  when  filed,  and  the  time  limited  by  the  sub 
mission,  if  any,  within  which  the  award  shall  be  made. 
When  so  entered  the  submission  shall  not  be  revoked 
without  the  consent  of  both  parties.  The  arbitrators  may 
be  compelled  by  the  court  to  make  an  award,  and  the 
32 


250  JUSTICES'  TREATISE. 

award  may  be  enforced  by  the  court  in  the  same  manner 
as  a  judgment.  If  the  submission  be  not  made  an  order 
of  the  court,  it  may  be  revoked  at  any  time  before  the 
award  is  made. 

Powers  of  Arbitrators. — Arbitrators  shall  have  power  to 
appoint  a  time  and  place  for  hearing,  to  adjourn  from  time 
to  time,  to  administer  oaths  to  witnesses,  to  hear  the  alle 
gations  and  evidence  of  the  parties,  and  to  make  an  award 
thereon. 

Majority  may  Determine  Question.- — All  the  arbitrators  shall 
meet  and  act  together  during  the  investigation ;  but  when 
met,  a  majority  may  determine  any  question.  Before  act 
ing,  they  shall  be  sworn  before  an  officer  authorized  to  ad 
minister  oaths,  faithfully  and  fairly  to  hear  and  examine  the 
allegations  and  evidence  of  the  parties,  in  relation  to  the 
matters  in  controversy,  and  to  make  a  just  award,  accord 
ing  to  their  understanding. 

Award  must  be  in  Writing  and  Entered. —  The  award 
shall  be  in  writing,  signed  by  the  arbitrators,  or  a  majority 
of  them,  and  delivered  to  the  parties.  When  the  submis 
sion  is  made  an  order  of  the  court,  the  award  shall  be  filed 
with  the  clerk,  and  a  note  thereof  made  in  his  register. 
After  the  expiration  of  five  days  from  the  filing  of  the 
award,  upon  the  application  of  a  party,  and  on  filing  an 
affidavit,  showing  that  notice  of  filing  the  award  has  been 
served  on  the  adverse  party  or  his  attorney,  at  least  four 
days  prior  to*  such  application,  and  that  no  order  staying 
the  entry  of  judgment  has  been  served,  the  award  shall  be 
entered  by  the  clerk  in  the  judgment  book,  and  shall  there 
upon  have  the  effect  of  a  judgment. 

May  be  Vacated  in  Certain  Cases. — The  court,  on  motion, 
may  vacate  the  award  upon  either  of  the  following  grounds, 
and  may  order  a  new  hearing  before  the  same  arbitrators, 
or  not,  in  its  discretion  : 

1st.  That  it  was  procured  by  corruption  or  fraud. 

2d.  That  the  arbitrators  were  guilty  of  misconduct,  or 
committed  gross  error  in  refusing,  on  cause  shown,  to  post 
pone  the  hearing,  or  in  refusing  to  hear  pertinent  evidence, 
or  otherwise  acted  improperly,  in  a  manner  by  which  the 
rights  of  the  party  were  prejudiced. 


ARBITRATION.  251 

3d.  That  the  arbitrators  exceeded  their  powers  in  making 
their  award ;  or  that  they  refused,  or  improperly  omitted,  to 
consider  a  part  of  the  matters  submitted  to  them ;  or  that 
the  award  is  indefinite,  or  cannot  be  performed. 

May  Modify  or  Correct  Award. — The  court  may,  on  mo 
tion,  modify  or  correct  the  award  where  it  appears  : 

1st.  That  there  was  a  miscalculation  in  figures,  upon 
which  it  was  made,  or  that  there  is  a  mistake  in.  the  de 
scription  of  some5  person  or  property  therein. 

2d.  When  a  part  of  the  award  is  upon  matters  not  sub 
mitted,  which  part  can  be  separated  from  other  parts,  and 
does  not  affect  the  decision  on  the  matters  submitted. 

3d.  When  the  award,  though  imperfect  in  form,  could 
have  been  amended  if  it  had  been  a  verdict,  or  the  imper 
fection  disregarded. 

Subject  to  Appeal. — The  decision  upon  the  motion  shall 
be  subject  to  appeal  in  the  same  manner  as  an  order  which 
is  subject  to  appeal  in  a  civil  action ;  but  the  judgment 
entered  before  a  motion  is  made,  shall  not  be  subject  to 
appeal. 

Submission  may  be  Revoked. — If  a  submission  to  arbitra 
tion  be  revoked,  and  an  action  be  brought  therefor, .  the 
amount  to  be  recovered  shall  only  be  the  costs  and  dam 
ages  sustained  in  preparing  for  and  attending  the  arbitra 
tion.  Gen.  Laws,  5318-5327. 

SEC.  8.  The  submission  of  a  cause  to  arbitration  ope 
rates  as  a  discontinuance,  and  the  suit  ceases  to  be  pend 
ing  in  court.  This  is  the  common-law  doctrine.  In  Eng 
land,  it  is  only  by  virtue  of  the  statutes  (9  and  10  Will.  Ill, 
Cap.  15,  and  3  and  4  Will.  /F",-Cap.  42),  that  judgment  may 
be  entered  upon  the  award  of  arbitrators,  and  enforced  as 
a  judgment  of  the  court.  Previous  to  these  statutes  the 
method  of  enforcing  an  award  was  by  action  (1  Cliitty's  PI. 
144,  116,  124),  except  in  those  cases  where  the  submission 
was  made  a  rule  of  court  and  enforced  by  attachment,  as 
for  a  contempt  (Kyd  on  Awards,  21),  an  innovation  intro 
duced  by  the  English  courts,  but  not  sanctioned  by  Ameri 
can  practice.  The  rule  of  enforcing  an  award  by  action 
prevails  generally  in  the  United  States,  except  where  other 
wise  provided  by  statute.  In-many  if  not  all  of  the  states, 


252  JUSTICES'  TREATISE. 

the  statutes  above  cited  have  been,  in  substance,  re-enacted, 
but  here  we  have  no  statute  upon  the  subject.     1  CaL  47. 

SEC.  9.  The  rule  is  general  that  arbitrators  must  pass 
upon  all  matters  submitted,  or  their  award  will  be  invalid. 
If  several  matters  are  specified  in  the  submission,  and  the 
award  does  not  disclose  that  each  is  determined,  it  is  de 
fective  on  its  face  and  can  be  set  aside  on  motion ;  but  if 
the  submission  is  general  of  all  matters  in  controversy, 
without  specification,  it  is  not  necessary  that  the  award 
should  embrace  any  matters  except  those  which  are  laid 
before  the  arbitrators.  These  last,  however,  must  be 
passed  upon  or  the  award  will  be  void  in  toto,  and  be  set 
aside  upon  a  proper  showing  of  the  omission.  12  Cal. 
339.  Thus,  a  submission  embraced  three  subjects  :  One 
to  determine  all  actions  between  the  parties ;  another  to 
fix  the  value  to  be  put  upon  hop-poles  and  potatoes  in 
certain  land;  and  the  third  to  ascertain  the  rent  to  be 
paid  for  other  land.  The  arbitrators  made  their  award 
upon  the  first  two  subjects,  -but  omitted  to  notice  the  last, 
and  it  was  held  that  the  whole  award  was  vitiated  by  the 
omission.  12  CaL  339. 

SEC.  10.  An  agreement,  in  writing,  between  two  parties 
to  submit  matters  in  difference  between  them  to  an  arbi 
trator,  with  power  to  award  and  adjudge  all  matters  in  dif 
ference  between  them,  and  to  make  an  award  in  writing, 
and  that  his  award  when  made  may  be  entered  as  a  judg-  * 
ment  of  any  court  of  record  having  jurisdiction,  does  not 
give  any  court  jurisdiction  of  the  parties  litigant  or  of  the 
subject-matter  of  the  controversy,  unless  the  agreement 
further  stipulate  that  the  submission  may  be  entered  as  an 
order  of  court,  and  the  submission  and  stipulation  are  filed 
with  the  clerk,  and  the  clerk  enter  in  his  register  of  actions 
a  note  of  the  submission,  with  the  names  of  the  parties,  the 
name  of  the  arbitrator,  etc.,  as  required  by  the  three  hun 
dred  and  eighty-second  section  of  the  practice  act.  30  CaL 
218. 

SEC.  11.  An  Award  of  Arbitrators. — An  award  to  be 
valid  must  be  certain  and  decisive  as  to  the  matters  sub 
mitted,  and  thus  avoid  all  further  litigation.  37  CaL  197. 

SEC.  12.      An  award  by   arbitrators    selected   to   settle 


AKBITEATION.  253 

accounts  between  parties,  that  one  of  the  parties  is  enti 
tled  to  credit  of  a  certain  sum  on  his  account  with  the 
other,  is  not  final  and  decisive  as  to  the  matter  submitted, 
and  is  not  therefore  valid.  37  Cal.  197. 

SEC.  13.  An  award  of  arbitrators  is  not  admissible  in 
evidence  unless  it  is  final  and  conclusive  upon  the  matter 
submitted.  37  Cal.  197. 

SEC.  14.  The  following  is  a  form  of  agreement  of  general 
— or  special — submission  to  arbitration : 

Agreement  of  General — or  Special — Submission  to  Arbitration. 

We,  the  undersigned,  mutually  agree  to  submit,  and  do  hereby  submit,  all 
our  matters  in  difference,  of  every  name  or  nature  [or,  if  it  be  a  special  matter 
of  difference  to  be  submitted,  omit  the  words  "  of  every  name  or  nature, "  and 
use  the  words  "in  relation  to,"  and  particularly  describe  the  subject  matter 

submitted]  to  the  award  and  decision  of , and , 

for  them  to  hear  and  determine  the  same,  and  make -their  award,  in  writing, 
on  or  before  the  ....  day  of  ....  18 .. 

Witness  our  hands,  this  ....  day  of  . . .  .,  A.D.  18. . 


In  presence  of 


SEC.  15.  "When  parties  agree  to  submit  their  differences 
to  arbitration  they  may — and  it  is  safest  so  to  do — obligate 
each  other  to  abide  and  perform  the  award  of  the  arbitra 
tors,  by  executing  and  delivering,  each  to  the  other,  a  bond 
which  may  be  substantially  as  follows  : 

Bond  of  Arbitration. 

Know  all  men  by  these  presents :  That  I, ,  of  . . . ,  am  held  and 

firmly  bound  to  : ,  ot  . . .  .,  in  the  sum  of  ....  dollars,  lawful  money 

of  the  United  States,  to  be  paid  to  the  aaid ,  or  to  his  executors, 

administrators  or  assigns ;  for  which  payment,  well  and  truly  to  be  made, 
I  bind  myself,  my  heirs,  executors  and  administrators,  firmly  by  these 
presents. 

Sealed  with  my  seal ;  dated  the  ....  day  of . . . .,  A.D.  18. . 

The  condition  of  the  above  obligation  is  such,  that  if  the  above  bounden 

,  his  heira,  executors  and  administrators,  shall  and  do,  in  all  things 

well  and  truly  abide  by,  keep  and  perform,  the  award  and  final  determina 
tion  of , and ,  of  . . . . ,  arbitrators,  as  well  on 

the  part  and  behalf  of  the  above  bounden ,  as  of  the  above-named 

,  concerning  all  matters  of  difference  of  every  name  or  nature  [or, 

the  specific  matter,  which  should  be  here  repeated]  submitted  to  said  arbi 
trators,  by  the  agreement  in  writing  entered  into  by  the  above  bounden  and 


254  JUSTICES'  TEEATISE. 

the  said  ........  ,  dated  the  ....  day  of  .  .  .  .  ,  A.D.  18  .  .  ,  when  the  said  award 

shall  be  made,  in  writing,  under  the  hands  of  the  said  arbitrators,  or  any  two 
of  them,  and  ready  to  be  delivered  to  fhe  above  bounden  and  to  the  said 
........  ,  or  to  such  one  of  them  as  shall  desire  the  same,  on  or  before  the 

....  day  of  .  .  .  .,  A.D.  18.  .,  then  this  obligation  to  be  void  or  else  to  remain 

in  full  force. 


.  Sealed  and  delivered  in  presence  of 


SEC.  16.     The  following  is  a  form  of  notice  to  arbitrators 
of  their  appointment : 

Notice  to  Arbitrators  of  their  Appointment. 
To and ,  esquires : 

You  are  hereby  notified  that  you  have  been  nominated  and  chosen  arbitra 
tors,  as  well  on  the  part  and  behalf  of  the  undersigned ,  of  .... 

. . . . ,  as  of   ,  of ,  also  undersigned,  to  arbitrate,  award, 

etc.  [specifying  the  time  within  which,  as  stated  in  the  submission  or  bond, 
the  award  must  be  made];  and  you  are  requested  to  meet  the  said  parties  at 

the  office  of ,  in  the  town  of  ,  on  the day  of 

,  A.D.  18  . . ,  at  the  hour  of  . .  o'clock,  A.M.  of  that  day,  for  the  purpose 

of  fixing  upon  a  time  and  place  when  and  where  the  allegations  and.  proofs 
of  the  said  parties  shall  be  heard. 

Dated  the day  of ,  A.D.  18  ... 

Yours,  etc., 


SEC.  17.  The  following  is  a  form  of  notice  of  hearing  in 
an  arbitration : 

Notice  of  Hearing  in  an  Arbitration.  t 

In  the  matter  of  the  arbitration  of  and  ] 
concerning  certain  matters  [or,  "a  | 
certain  matter"]  of  difference  j 

between   ,  of  the  one  part, 

and ,  of  the  other  part.  J 

Sir:  You  will  please  take  notice  that  the  arbitrators  have  appointed  a  hear 
ing  in  the  matter  above  specified  ffe  be  had  before  them,  at  the  [describe  the 
place]  on  the  ....  day  of ,  A.D.  18  . . ,  [give  the  hour  of  the  day]. 

Dated  the  ....  day  of ,  A.D.  18  ... 


Or    ,  attorney  for , 

Or  . . . . ,  . . . . ,  . . . . ,  arbitrators. 

SEC.  18.     The  following  is  a  form  of  notice  of  revocation 
of  powers  of  arbitrators  by  both  parties : 

Notice  of  Revocation  of  Powers  of  Arbitration  by  both  Parties. 

To , and ,  esquires. 

Take  notice,  that  we  do  hereby  revoke  your  powers  as  arbitrators,  under 


ARBITRATION.  255 

the  submission  made  to  you  by  us,  in  writing,  and  [if  it  be  by  an  order  of 

court]  entered  as  an  order  of  the district  court,  on  the day 

of  .         .,  A.D.  18  .. 


SEC.  19.  The  following  is  a  form  of  notice  of  revocation 
by  one  party  of  the  powers  of  arbitrators  (the  submission 
not  ha\dng  been  entered  as  an  order  of  court) : 

Notice  of  Revocation  by  one  Party,  etc. 

To 

You  are  hereby  notified  that  I  have  this  day  revoked  the  powers  of 

,   ,  and  ....  ,  arbitrators,  chosen  to  settle  the  matters  in 

controversy  between  us,  and  that  the  following  is  a  copy  of  such  revocation 
[insert  the  revocation  made  by  one  of  the  parties  only]. 

Dated  the day  of  ,  18  ... 

Yours,  etc., 


SEC.  20.     The  following  is  a  form  of  arbitrator's  oath : 

Arbitrator's  Oath. 

You  do  solemnly  swear,  faithfully  and  fairly  to  hear  and  examine  the  mat 
ter  in  controversy  between ,  of  the  one  part,  and ,  of  the 

other  part,  and  to  make  a  just  award,  according  to  the  best  of  your  under 
standing. 


256 


JUSTICES'  TREATISE. 


CHAPTER     XXX 
ATTACHMENT. 


SECS. 

CHAKACTEB  OF  ATTACHMENT.  . .  1-5 
IN  WHAT  ACTIONS  IT  MAY  ISSUE  .  6-  7 
ATTACHMENTS  FOE  DEBTS  NOT 

DUE 8-11 

WHEN  THE  WKIT  MAT  ISSUE 12-18 

THE  AFFIDAVIT 19-21 

FOBM  OF  AFFIDAVIT  FOE  ATTACH 
MENT  AGAINST  EESIDENT  ...  22 

FOEM  OF  AFFIDAVIT  FOE  ATTACH 
MENT  AGAINST  NON- EESI 
DENT 23 

THE  UNDEETAKING 24-25 

FOEM  OF  UNDEETAKING 26-30 

THE  WEIT  OF  ATTACHMENT.  . . .  31-33 

THE  FOEM  OF  WEIT 34 

FOEM  OF  UNDERTAKING  ON  RE- 

LEASE  OF  ATTACHMENT.  ...         35 
THE  PROPERTY  SUBJECT  TO  AT 
TACHMENT  36-41 

THE  EXECUTION  OF  THE  WEIT  . .  42-54 
WHEN  THE  LIEN  TAKES  EFFECT  55-59 
CONTESTS  BETWEEN  ATTACHING 

CREDITORS 60-68 

GARNISHMENT 69-78 

FOEM  OF  GARNISHMENT 79 

EXAMINATION  OF  DEFENDANT  AND 

HIS  DEBTOR  OR  BAILEE.  . . .  80-83 
FORM  OF  ORDER  OF  EXAMINATION 

OF  DEFENDANT  . . ,  84 


SECS. 


FORM  OF  CONSTABLE'S  CERTIFI- 

CATE  OF  SEBVICE  OF  ORDER        85 

FORM  OF  OEDEE  OF  EXAMINATION 

OF  DEBTOE  OF  DEFENDANT..        86 

FOEM  OF  CONSTABLE'S  CERTIFI 
CATE  OF  SERVICE  OF  ORDER  87 

INVENTORY  OF  PROPERTY  AT 
TACHED  88 

CONSTABLE'S  EETURN  OF  WRIT  89-90 

FORMS  OF  CONSTABLE'S  RETURN 

OF  WRIT 91-96 

DUTY  OF  CONSTABLE  WITH  RE 
SPECT  TO  PEOPEETY  AT 
TACHED  97-102 

CLAIMS  BY  THIRD  PERSONS  ....  103-104 

THE  INDEMNITY  BOND 105-107 

FOEM  OF  INDEMNITY  BOND  ....         108 

DISCHARGE  OF  ATTACHMENT  AF 
TER  LEVY 109 

UNDERTAKING  ON  SUCH  DIS 
CHARGE  110-114 

FORM    OF    UNDERTAKING    ON 

SUCH    DlSCHAEGE 115 

DlSCHAEGE  OF  ATTACHMENT 
FOE  BEING  IMPEOPEELY 
OR  IRREGULARLY  ISSUED. 116-119 

SUITS  AGAINST  PLAINTIFF  LN 

ATTACHMENT...  120 


Character  of  Attachment. 

SECTION  1.  The  remedy  by  attachment  is  not  a  distinct 
proceeding  in  the  nature  of  an  action  in  rem,  but  is  an 
adjunct  or  a  proceeding  auxiliary  to  the  action  at  law, 
designed  for  the  purpose  of  securing  the  property  of  the 
debtor  to  answer  the  judgment  which  may  be  obtained. 
This  is  apparent  from  the  language  of  the  practice  act.  It 
is  the  creature  of  the  statute.  2  Gal.  24 ;  3  Cal.  365. 

SEC.  2.  So  also  is  the  remedy  of  garnishment.  These 
remedies  cannot  be  extended  to  cases  not  named  in  the 
act.  3  Cal.  365. 


ATTACHMENT.  257 

SEC.  3.  As  the  proceeding  of  attachment  is  of  statutory 
origin  and  unknown  to  the  common  law,  all  the  provisions 
of  the  act  must  be  strictly  complied  with.  It  is  a  harsh 
remedy  at  best,  and  a  party  who  seeks  to  enforce  it  against 
another  should  be  held  to  a  strict  accountability  and 
compliance  with  the  law.  7  Col.  565. 

SEC.  4.  Our  statute  has  prescribed  who  may  issue  an 
attachment  and  take  the  proper  bond,  and  under  what  cir 
cumstances.  This  must  be  respected.  The  court  cannot 
change  the  law ;  it  can  only  administer  it.  Every  officer 
is  presumed  to  know  his  duty ;  if  he  does  not  and  trans 
cends  his  powers,  the  responsibility  rests  with  him.  2  Col. 
255. 

SEC.  5.  The  act  of  issuing  an  attachment  is  merely 
ministerial,  and  there  is  no  intendment  in  favor  of  the 
regularity  of  the  process.  *7  Cal.  562. 

In  what  Actions  Attachment  may  Issue. 

SEC.  6.  In  an  action  upon  a  contract,  express  or  implied, 
made  after  the  twenty-eighth  day  of  April,  1860,  for  the 
direct  payment  of  money,  which  contract  is  made  or  is  pay 
able  in  this  state,  and  is  not  secured  by  mortgage,  lien  or 
pledge,  upon  real  or  personal  property,  the  plaintiff,  at  the 
time  of  issuing  the  summons  or  at  any  time  afterwards,  may 
have  the  property  of  the  defendant  attached  as  security  for 
the  satisfaction  of  any  judgment  that  may  be  recovered, 
unless  the  defendant  give  security  to  pay  such  judgment  as 
hereinafter  provided.  Gen.  Laivs,  5482. 

SEC.  7.  The  process  of  attachment  is  a  remedy  only 
given  in  cases  of  indebtedness  arising  upon  contract  (2  Cal. 
24),  and  upon  those  contracts  for  the  direct  payment  of 
money  which  are  made  in  or  are  payable  in  this  state. 
The  right  of  attachment  does  not  exist,  except  where  the 
contract  is  made  within  this  state,  or  if  made  without  it, 
then  accompanied  by  a  stipulation  between  the  parties  to 
it  that  the  money  is  to  be  paid  here.  A  subsequent  prom 
ise  to  pay  here  cannot  affect  the  question  in  any  manner 
when  the  suit  is  brought  upon  the  original  contract. 
Thus,  a  debt  due  for  merchandise  sold  in  Boston,  to  resi 
dents  of  San  Francisco,  and  forwarded  to  the  latter,  they 
33 


258  JUSTICES'  TREATISE. 

stipulating  to  pay  by  remitting   funds  to  Boston,    is    not 
the  subject  of  an  attachment.     Dalton  vs.  Slielton,  3  Cal. 

207,  208. 

Attachments  for  Debts  not  Due. 

SEC.  8.  An  attachment  issued  upon  a  debt  not  due  is 
void  as  against  creditors  whose  rights  are  injuriously 
affected  by  it.  Davis  vs.  Eppvnger,  18  Cal.  378. 

SEC.  9.  It  is,  at  least,  prima  facie  void  as  against  an 
other  attachment,  where  the  first  is  issued  before  the  matu 
rity  of  the  debt.  .The  attempt  is  against  law  and  a  fraud 
on  the  other  creditors,  for  whom  some  remedy  ought  to 
be  provided.  If,  therefore,  the  plaintiff,  when  he  caused 
the  attachment  to  be  made  on  his  writ,  had  no  cause  of 
action,  he  cannot  claim  the  benefit  of  his  attachment 
against  a  creditor  having  a  good  cause  of  action.  13  Cal. 
441. 

SEC.  10.  But  where  goods  were  fraudulently  purchased 
by  an  insolvent,  the  creditor  may  attach  before  the  ma 
turity  of  the  debt,  and  other  creditors,  subsequently  attach 
ing,  cannot  complain  that  the  suit  was  prematurely  brought. 
The  debt  in  such  case  is  equitably  due,  and  there  being  no 
actual  fraud  against  subsequent  creditors,  they  cannot  be 
preferred  in  equity,  even  if  the  suit  could  have  been  de 
feated  by  the  debtor  himself.  Patrick  vs.  Montador,  13 
Cal.  434. 

SEC.  11.  Where  G.  &  Co.,  concealing  their  insolvency, 
obtained  an  extension  from  their  creditor  B.,  and  before 
the  maturity  of  the  notes  B.,  apprehending  that  G.  &  Co. 
would  fail  before  their  paper  became  due,  and  that  the 
other  creditors  of  G.  &  Co.  would  exhaust  their  assets  by 
attachment,  obtained  by  an  arrangement  with  G.  &  Co. 
an  ante-dated  note  for  the  amount  due  him  at  the  date 
thereof  by  G.  &  Co.,  on  which  suit  was  commenced  by 
attachment,  and  a  levy  made  upon  the  property  of  G.  &  Co., 
it  was  held,  that  B.'s  attachment  and  claim  was  valid 
against  subsequent  attaching  creditors,  the  case  not  being 
one  either  of  actual  or  constructive  fraud.  Brewster  vs. 
BOUTS,  8  Cal.  506. 

"When  the  Writ  may  Issue. 

SEC.  12.     An  attachment  issued  before  the  issuance  of  the 


ATTACHMENT.  259 

summons  in  the  suit,  is  void,  and  the  subsequent  issuance 
of  the  summons  cannot  cure  it.     9  Col.  538. 

SEC.  13.  The  fact  that  a  party  is  indebted  to  another  is 
not  sufficient  of  itself  to  warrant  the  issuing  of  an  attach 
ment.  The  party  is  required  to  make  affidavit  that  the  debt ' 
sued  on  arises  out  of  a  contract  for  the  direct  payment  of 
money,  made  or  payable  in  this  state,  and  is  not  secured  by 
mortgage  on  real  or  personal  property;  this  affidavit  must 
be  made  in  a  suit  pending,  and  be  accompanied  with  a 
bond,  and  the  suit,  affidavit  and  bond,  are  a  necessary  pred 
icate  for  the  writ,  and  should  be  shown  in  evidence  the 
same  as  a  judgment.  7  Col.  562. 

SEC.  14.  When  Proper  to  Issue. — The  policy  of  the  law  is, 
that  a  creditor  holding  a  security  by  way  of  ' '  mortgage,  lien 
or  pledge,  upon  real  or  personal  property,"  shall  not  resort 
to  the  summary  process  of  attachment  until  he  has  ex 
hausted  his  security.  But  such  lien  or  pledge  must  be  of 
a  fixed,  determined  character,  capable  of  being  enforced 
with  certainty  and  depending  on  no  conditions.  Porter  vs. 
Brooks,  35  Cal.  199. 

SEC.  15.  A  pledge  of  personal  property  is  a  "mortgage," 
within  the  meaning  of  the  attachment  act ;  the  word  being 
there  used  in  its  most  general  signification,  meaning  "se 
curity."  8  Ccd.  260. 

SEC.  16.  Duty  of  Clerk  in  Issuing  Writs. — While  the  clerk 
of  the  district  court  [justice]  is  bound  to  issue  writs  of  at 
tachment  in  the  order  in  which  they  are  demanded,  yet  if 
the  party  who  makes  the  first  demand  is  not  in  attendance 
to  receive  his  writ  when  completed,  the  clerk  [justice]  is 
not  bound  in  the  meantime  to  delay  the  issuing  of  other 
writs  against  the  same  party.  Lick  vs.  Madden,  36  Cal.  208. 

SEC.  17.  .  When  the  clerk  [justice]  has  prepared  for  de 
livery  the  writ  first  demanded,  he  is  bound  to  issue  the  writ 
to  the  next  comer,  and  if  in  such  case  the  first  comer  is  not 
there  to  receive  his  writ  and  for  that  reason  the  next  comer 
first  delivers  his  writ  to  the  sheriff  [or  constable]  and  by 
that  means  acquires  a  priority  and  the  first  comer  loses  his 
debt,  the  clerk  [justice]  is  not  liable.  36  Cal.  208. 

SEC.  18.  If  the  clerk  [justice]  first  issues  the  writ  of 
attachment  secondly  demanded,  but  if,  notwithstanding,  he 


260  JUSTICES'  TEEATISE. 

has  the  writ  first  demanded  prepared  and  ready  for  delivery 
as  soon  as  it  is  called  for,  he  is  not  liable  for  the  damages 
sustained  by  the  first  party  because  the  second  obtains  the 
first  levy.  36  Cal.  208. 

The  Affidavit. 

SEC.  19.  A  writ  to  attach  the  property  of  the  defendant 
shall  be  issued  by  the  justice,  on  receiving  an  affidavit  by 
or  on  behalf  of  the  plaintiff,  showing  the  following  facts  : 

1st.  That  the  defendant  is  indebted  to  the  plaintiff  [speci 
fying  the  amount  of  such  indebtedness,  over  and  above  all 
legal  set-offs  and  counter-claims],  upon  a  contract,  express 
or  implied,  for  the  direct  payment  of  money,  and  that  such 
contract  was  made  or  is  payable  in  this  state,  and  that  the 
payment  of  the  same  has  not  been  secured  by  any  mortgage, 
lien  or  pledge,  upon  real  or  personal  property. 

2d.  That  the  defendant  is  indebted  to  the  plaintiff  [speci 
fying  the  amount  of  such  indebtedness  as  near  as  may  be, 
over  and  above  all  legal  set-offs  or  counter-claims],  and  that 
the  defendant  is  a  non-resident  of  the  state. 

3d.  That  the  sum  for  which  the  attachment  is  asked,  is  an 
actual,  bdna  fide,  existing  debt,  due  and  owing  from  the 
defendant  to  the  plaintiff,  and  that  the  attachment  is  not 
sought  and  the  action  is  not  prosecuted  to  hinder,  delay  or 
defraud,  any  creditor  or  creditors  of  the  defendant.  Pr. 
Act,  559;  Gen.  Laws,  5483,  5061. 

SEC.  20.  The  fact  that  an  affidavit  for  an  attachment 
omits  to  aver  that  the  sum  for  which  the  writ  is  asked  is 
"an  actual,  bonajide,  existing  debt,  due  and  owing  from  the 
defendant  to  the  plaintiff,  and  that  the  attachment  is  not 
sought  and  the  action  is  not  prosecuted  to  hinder,  delay  or 
defraud,  any  creditor  or  creditors  of  the  defendant,"  does 
not  render  the  attachment  issued  a  nullity  as  against  subse 
quent  attaching  creditors.  18  Cal.  152. 

SEC.  21.  An  affidavit  for  attachment  ought  to  state  the 
ground  in  positive  terms,  and  is  insufficient  if  it  avers  that 
the  defendant  is  indebted  to  the  plaintiff  upon  an  express 
or  implied  contract.  A  description  in  the  alternative  IMIS 
always  been  held  insufficient.  The  attachment  upon  such 
affidavit  should  be  quashed.  4  Cal.  195. 


ATTACHMENT.  261 

Form  of  Affidavit  for  Attachment  against  Resident. 

SEC.  22.     The  following  is  a  form  of  affidavit  for  attach 
ment  against  resident : 
In  the  justice's  court  of  ....  township,  in  the  county  of  . . . . ,  state  of  .... 


plaintiff, 
against 


defendant. 

State  of ,    '   ) 

county  of j  ss> 

,  of  said  county,  being  duly  sworn,  says:  That  he  is  the 

plaintiff  [or,  "  one  of  the  plaintiffs  "]  in  the  above-entitled  action,  [or,  ... 
" . .  .  .  of  said  county,  being  duly  sworn  on  behalf  of  the  plaintiff  in  the  above- 
entitled  action,  says :  That  he  is  the  agent  of  the  said  plaintiff,  who  is  tempo 
rarily  absent  from  said  county,  and  that  said  affiant  is  better  informed  of  the 
facts  constituting  the  cause  of  said  action  than  said  plaintiff,  which  is  the  rea 
son  this  affidavit  is  not  made  by  said  plaintiff, ' '  or,  state  other  reasons,  accord 
ing  to  the  facts].  That  the  defendant  in  said  action  is  indebted  to  the  said 

plaintiff  in  the  sum  of dollars,  gold  coin  of  the  United  States,  over 

and  above  all  legal  set-offs  and  counter-claims,  upon  an  express  contract  for 
the  direct  payment  of  money,  to  wit :  upon  a  certain  promissory  note  dated 

,  . . . . ,  made  by  said  defendent  to  said  plaintiff,  for  the  sum  of 

....  dollars,  gold  coin  of  the  United  States,  payable  ....  year  after  date, 
with  ....  per  cent,  per  month  interest  after  due ;  and  that  said  contract  was 
made  and  is  payable  in  this  state,  and  that  the  payment  of  the  same  has  not 
been  secured  by  any  mortgage,  lien  or  pledge,  upon  real  or  personal  prop 
erty,  and  was  made  subsequent  to  the  ....  day  of  . . . . ,  18 . . : 

And  that  the  sum  for  which  the  attachment  is  asked  in  said  action,  that  is 
to  say,  the  amount  of  indebtedness  which  is  above  stated,  is  an  actual,  bonafide, 
existing  debt,  due  and  owing  from  the  said  defendant  to  the  said  plaintiff ; 
and  that  the  said  attachment  is  not  sought,  and  the  said  action  is  not 
prosecuted,  to  hinder,  delay  or  defraud,  any  creditor  or  creditors  of  said 
defendant.  

Subscribed  and  sworn  to  before  me,  this day  of ,  18. . 


Justice  of  the  peace  of  said  township. 

Form  of  Affidavit  for  Attachment  Against  Non-Resident. 
SEC.  23.     The  following  is  a  form  of  affidavit  for  attach 
ment  against  non-resident  : 

In  the  justice's  court  in  and  for township,  county  of , 

state  of  

plaintiff, 
against 

defendant. 

State  of   { 

county  of  J  ss> 

,  of  said  county,  being  duly  sworn,  says:  That  he  is  the  plaintiff 


262  JUSTICES'  TREATISE. 

[or,  "  one  of  the  plaintiffs  "]  in  the  above-entitled  action  [or,  " , 

of  said  county,  being  duly  sworn  on  behalf  of  the  plaintiff  in  the  above- 
entitled  action,  says:  That  he  is  the  attorney  for  the  said  plaintiff,  who  is 

temporarily  absent  from  the  state  of  ,  and  that  said  affiant  is  as 

well  informed  of  the  facts  hereinafter  stated  as  said  plaintiff,  which  are  the 
reasons  this  affidavit  is  not  made  by  said  plaintiff, ' '  or,  state  other  reason 
according  to  the  facts.  See  foregoing  forms]. 

That  the  defendant  in  said  action  is  indebted  to  the  said  plaintiff  in  the 

sum  of dollars,  gold  coin  of  the  United  States,  over  and  above  all  legal 

set-offs  and  counter-claims  [specifying  the  amount  of  such  indebtedness  as 
near  as  may  be,  over  and  above  all  legal  set-offs  or  counter-claims]. 

That  said  sum  of  ....  dollars  is  a  balance  due  for  work  and  labor  done  by 
said  plaintiff  at  the  special  instance  and  request  of  said  defendant,  and  that 
the  said  defendant  is  a  non-resident  of  this  state.  That  the  sum  for  which 
the  attachment  is  asked  in  the  said  action,  that  is  to  say:  the  amount  of 
indebtedness  which  is  above  stated,  is  an  actual,  bonafide,  existing  debt,  due 
and  owing  from  the  said  defendant  to  the  said  plaintiff ;  and  that  the  said 
attachment  is  not  sought  and  the  said  action  is  not  prosecuted  to  hinder, 
delay  or  defraud,  any  creditor  or  creditors  of  the  said  defendant. 


Subscribed  and  sworn  to  before  me,  this day  of ,  A.D.  18. . 

Justice  of  the  peace  of  said  township. 

The  Undertaking. 

SEC.  24.  Before  issuing  the  writ,  the  justice  shall  require 
a  written  undertaking  on  the  part  of  the  plaintiff,  with  two 
or  more  sufficient  sureties,  to  the  effect  that  if  the  defendant 
recover  judgment  the  plaintiff  will  pay  all  costs  that  may  be 
awarded  to  the  defendant,  and  all  damages  which  he  may 
sustain  by  reason  of  the  attachment.  Gen.  Laivs,  5484. 

SEC.  25.  The  practice  act  does  not  require  the  under 
taking  on  attachment  to  be  executed  in  form  to  the  defend 
ants,  but  specifies  the  conditions  it  shall  contain.  An  un 
dertaking  given  to  the  state  of  California  instead  of  the 
defendants  is  not  materially  defective.  The  defendants 
being  the  parties  really  in  interest  can  sue  upon  the  under 
taking  in  their  own  names.  7  Gal.  518. 

Form  of  Undertaking  on  Attachment. 

SEC.  26.  The  following  is  a  form  of  undertaking  on 
attachment : 


ATTACHMENT.  263 


In  the  justice's  court  of ,  township  in  the  county  of 

state  of  . 


plaintiff, 
against 


defendant. 

Whereas,  an  attachment  against  the  property  of  the  defendant  in  the 
above-entitled  action  has  been  this  day  demanded,  and  is  abont  to  issue: 
Now,  therefore,  we,  the  undersigned,  do  undertake,  on  the  part  of  the 
plaintiffs  in  the  said  action,  that  if  the  said  defendant  recover  judgment,  the 
said  plaintiffs  will  pay  all  costs  that  may  be  awarded  to  the  said  defendant, 
and  all  damages  which  he  may  sustain  by  reason  of  the  said  attachment,  not 
exceeding  the  sum  of  ....  hundred  dollars. 

Witness  our  hands  and  seals,  in  the  county  of  ..........  ,  this  ....  day  of 

......  ,  A.D.  18  ...  ............  [L.S.] 


State  of  ........  ) 

«|>unty  of  .........  f  s> 

........  and  ........  the  sureties  in  the  within  undertaking,  being  duly 

sworn,  each  for  himself,  says:  That  he  is  a  resident  and  householder  within 
the  said  city  and  county,  and  is  worth  double  the  amount  stated  in  the  said 
undertaking,  over  and  above  all  his  debts  and  liabilities,  exclusive  of  prop 
erty  exempt  from  execution. 


Subscribed  and  sworn  to  before  me,  this  ....  day  of ,  A.D.  18  ... 

> 

Justice  of  the  peace  of  said  township. 

SEC.  27.  The  bond  is  the  antecedent  of  the  attachment, 
and  accompanies,  in  point  of  time,  the  affidavit  which  must 
be  made  before  the  writ  is  issued.  It  depends  for  its  legal 
effect  upon  the  writ.  If  no  writ  were  issued,  such  a  bond 
would  be  null  and  void;  it  could  have  no  effect  except  as 
connected  with  the  attachment — they  exist  together.  2  Cal. 
255. 

SEC.  28.  If  a  justice  issue  an  attachment,  and  take  a 
bond  in  a  suit  for  a  sum  exceeding  his  jurisdiction  the  pro 
ceedings  are  void,  and  no  action  lies  on  the  bond.  2  Cal. 
251. 

SEC.  29.  An  attachment  bond  executed  after  the  writ 
has  been  levied,  and  the  attachment  dismissed  by  the 
plaintiff  is  void.  And  in  a  suit  on  an  attachment  bond,  if 
the  bond  is  void,  the  obligee  cannot  recover  for  injury 
sustained  by  the  attachment.  2  Cal.  251. 


264  JUSTICES'  TREATISE. 

SEC.  30.  If  the  defendant  recover  judgment  against  the 
plaintiff  any  undertaking  received  in  the  action,  all  the  pro 
ceeds  of  sales  and  money  collected  by  the  sheriff  or  con 
stable,  and  all  the  property  attached  remaining  in  the 
sheriff's  or  constable's  hands,  shall  be  delivered  to  the 
defendant  or  his  agent,  the  order  of  attachment  shall  be 
discharged,  and  the  property  released  therefrom.  Gen. 
Laws,  5075,  5486. 

The  "Writ  of  Attachment. 

SEC.  31.  The  writ  may  be  directed  to  the  sheriff  or  any 
constable  of  the  county,  and  shall  require  him  to  attach  and 
safely  keep  all  the  property  of  the  defendant  within  his 
county  not  exempt  from  execution,  or  so  much  thereof  as 
may  be  sufficient  to  satisfy  the  plaintiff's  demand,  the 
amount  of  which  shall  be  stated  in  conformity  wifch  the 
complaint,  unless  the  defendant  give  him  security  by  the 
undertaking  of  two  sufficient  sureties,  in  an  amount  suffi 
cient  to  satisfy  such  demand  besides  costs ;  in  which  case, 
to  take  such  undertaking.  Pr.  Act,  554;  Gen.  Laws,  5485. 

SEC-.  32.  An  attachment  issued  by  A,  "one  of  the  jus 
tices  of  the  peace  for  said  county,"  is  good,  although  signed 
by  A's  name  merely,  without  the  words  "justice  of  the 
peace,"  or  the  initials  "J.  P."  20  Geo.  735.  The  name 
should  be'  signed  in  full,  and  it  should  be  signed  officially. 

SEC.  33.  A  writ  of  attachment  is  effectual  to  change  the 
title  of  personal  property  only  from  the  time  of  levy.  Tafft 
vs.  Hanlove,  14  Cal.  47. 

Form  of  Writ  of  Attachment. 

4 

SEC.  34.     The  following  is  a  form  of  writ  of  attachment: 

In  the  justice's  court  of  ....  township,  in  the  county  of  . . . . ,  state  of 

1 

plaintiff,  | 
against 


defendant,  j 

The  people  of  the  state  of , 

To  the  sheriff  or  any  constable  of  the  county  of  . . . . ,  greeting  : 

You  are  hereby  commanded  to  attach  and  safely  keep  all  the  property  of 
the  above-named  defendant  in  this  county,  not  exempt  from  execution,  or  so 
much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's  demand,  to  wit: 


ATTACHMENT.  265 

....  hundred  dollars,  gold  coin  of  the  United  States,  besides  the  costs,  un 
less  the  said  defendant  shall  give  you  security,  by  the  undertaking  of  two 
sufficient  sureties,  in  an  amount  sufficient  to  satisfy  said  demand,  besides 
costs,  in  which  case  you  will  take  such  undertaking. 
Make  due  return  hereof. 

Given  under  my  hand,  at  the  county  of  ......  this  ....  day  of A.D. 

18... 


•  'Justice  of  the  peace  of  said  township. 

Undertaking  on  Release  of  Attachment  to  be  given  to  Constable. 

SEC.  35.     The  following  is  a  form  of  undertaking  on  re 
lease  of  attachment  to  be  given  to  the  constable : 
In  the  justice's  court  of  ....  township,  in  the  county  of  . . . .,  state  of 

plaintiff,  I 
against 


defendant,  j 

Whereas,  the  above-named  plaintiff  has  commenced  an  action  in  the  afore 
said  court  against  the  above-named  defendant,  for  the  recovery  of  ....  hun 

dred  dollars,  gold  coin  of  the  United  States  ;  and  whereas,  an  attachment  has 
been  issued,  directed  to  the  sheriff  or  any  constable  of  the  county  of  .  .  .  .  , 

and  placed  in  the  hands  of  ............  ,  constable,  for  execution,  whereby 

he  is  commanded  to  attach  and  .safely  keep  all  the  property  of  the  said  de 
fendant  within  his  county  not  exempt  from  execution,  or  so  much  thereof  as 
may  be  sufficient  to  satisfy  the  plaintiff's  demand,  therein  stated,  in  con 
formity  with  the  complaint,  at  ....  hundred  dollars,  gold  coin  of  the  United 

States,  unless  the  defendant  give  him  security,  by  the  undertaking  of  two 
sufficient  sureties,  in  an  amount  sufficient  to  satisfy  said  demand,  besides 
costs,  in  which  case  to  take  such  undertaking  ; 

And  whereas,  the  said  defendant  is  desirous  of  giving  the  undertaking 
mentioned  in  the  said  writ  : 

Now,  therefore,  we,  the  undersigned,  residents  of  the  county  of  .  .  .  .  ,  in 

consideration  of  the  premises,  and  to  prevent  the  levy  of  said  attachment,  do 
hereby  jointly  and  severally  undertake,  in  the  sum  of  ....  hundred  dollars, 

gold  coin  of  the  United  States,  and  promise  to  the  effect,  that  if  the  said 
plaintiff  shall  recover  judgment  in  said  action,  we  wity  pay  to  the  said  plaint 
iff,  upon  demand,  the  amount  of  said  judgment,  together  with  the  costs, 
not  exceeding  in  all  the  sum  of  ........  dollars,  gold  coin  of  the  United 

States. 

Dated  the  ____  day  of  ____  ,  18  ... 


.............     [L.S.] 

State  of  ......  ,  [ 

county  of  ......  f 

............  and  ............  ,  whose  names  are  subscribed  as  the  sure 

ties  to  the  above  undertaking,  being  severally  duly  sworn,  each  for  himself 
says:    That  he  is  a  resident  and  .-.  .  .  holder  of  the  county  of  .  .  .  .,  and  is 

34 


266  JUSTICES'  TREATISE. 

worth  double  the  amount  stated  in  the  said  undertaking,  over  and  above  all 
his  debtB  and  liabilities,  exclusive  of  property  exempt  from  execution. 


Subscribed  and  sworn  to  before  me,  this day  of ,  A.D.  18. .. 

Justice  of  the  peace. 

The  Property  Subject  tc  Attachment 

SEC.  36.  The  rights  or  shares  which  the  defendant  may 
have  in  the  stock  of  any  corporation  or  company,  together 
with  the  interest  and  profits  thereon,  and  all  debts  due  such 
defendant,  and  all  other  property  in  this  state  of  such  de 
fendant,  not  exempt  from  execution,  may  be  attached  and 
if  judgment  be  recovered,  be  sold  to  satisfy  the  judgment 
and  execution.  Pr.  Act,  124;  Gen.  Laws,  5064,  5486. 

SEC.  37.  Lawful  possession  of  personal  property  is  prima 
facie  evidence  of  ownership ;  and  property  thus  possessed,  is 
prima  facie  liable  to  be  seized  under  a  writ  of  attachment 
against  the  party  in  possession  of  such  property.  In  an 
action  against  a  sheriff  to  recover  property  thus  seized  or 
its  value,  by  the  owner,  it  is  necessary  that  the  plaintiff 
should  show,  affirmatively,  notice  and  demand  before  bring 
ing  suit,  otherwise  he  cannot  recover  in  such  action.  In 
such  a  case,  it  is  not  necessary  that  the  defendant  should 
specially  plead  want  of  notice  and  demand,  in  order  to  make 
such  a  defense.  12  Cal.  73. 

SEC.  38.  Money  in  the  hands  of  the  sheriff  collected  on 
execution,  is  not  a  debt  due  to  the  plaintiff  in  execution, 
but  is  in  the  custody  of  the  law  until  finally  and  properly 
disposed  of.  It  cannot,  therefore,  be  the  subject  of  attach, 
ment  or  garnishment.  Any  attempt  of  the  sheriff  to  attach 
what  is  in  his  own  hands,  is  irregular.  The  sheriff  acquires 
a  special  property  in  whatever  comes  to  his  hands,  by  virtue 
of  his  office,  and  if  it  is-  at  any  time  subject  in  his  hands  to 
other  process,  to  which  he  must  necessarily  be  a  party,  such 
process  must  be  executed  by  the  coroner.  3  Cal.  365. 

SEC.  39.  Where  money  has  been  placed  on  general  de 
posit  in  a  bank,  and  negotiable  certificates  of  deposit  have 
been  issued  to  the  depositor  for  the  amount,  there  is  nothing 
left  in  the  possession  of  the  bankers  belonging  to  the  depos- 


ATTACHMENT.  267 

itor  upon  which,  an  attachment  issued  against  his  property 
can  fasten.  The  bankers,  by  their  certificates,  become  lia 
ble,  not  to  refund  to  the  depositor  the  specific  money  de 
posited,  but  to  pay  its  amount  to  the  holder  of  the  certifi 
cates,  whoever  he  may  be,  on  their  presentation.  9  CaL 
366. 

SEC.  40.  The  filing  of  a"  bill  by  one  partner  against  his 
copartners  for  a  dissolution  and  account,  and  praying  for 
an  injunction  and  receiver,  and  an  appointment  of  a  receiver 
by  the  court,  does  not  prevent  a  creditor  from  proceeding 
by  attachment,  and  gaining  a  priority  over  other  creditors, 
until  a  final  decree  of  dissolution  and  order  of  distribution. 
It.  is  only  in  cases  of  insolvency  that  the  equitable  rule  for 
a  pro  rata  distribution  will  apply,  and  then  as  of  necessity. 
If  the  firm  be  solvent,  a  creditor  whose  claim  is  due  cannot 
be  placed  on  a  par  with  others  whose  claims  are  not  yet  due, 
or  who  have  been  less  diligent  in  securing  claims  already 
due.  Funds  in  the  hands  of  a  receiver,  in  a  suit  for  disso 
lution,  are  therefore  subject  to  attachment  at  any  time  be 
fore  a  final  decree  of  dissolution  and  distribution.  9  CaL 
24. 

SEC.  41.  Defendants  were  expressmen,  with  an  office  at 
Coulterville,  in  Mariposa  county.  One  George  W.  Coulter 
was  their  agent.  Walling,  the  plaintiff,  delivered  to  de 
fendants  a  quantity  of  amalgam  to  be  forwarded  to  San 
Fraacisco,  to  be  there  coined  and  returned.  This  amal 
gam  belonged  to  five  persons  who  were  partners  in  quartz 
mining,  the  plaintiff  and  one  Carpenter  among  them.  On 
the  first  of  July,  1858,  while  this  property  was  in  the  hands 
of  these  carriers,  Carpenter  sold  to  plaintiff,  for  a  valuable 
consideration,  his  interest  in  this  amalgam,  and  gave  his 
receipt  to  the  plaintiff,  evidencing  the  contract.  The  de 
fendants  the  next  day  returned  to  Coulterville  with  the  coin 
made  of  the  dust  in  San  Francisco,  and  deposited  it  with 
Coulter,  their  agent,  and  on  the  same  evening  the  coin  was 
attached  by  a  constable  for  debts  of  Carpenter.  The  de 
fendants  had  no  notice  of  this  transfer  to  the  plaintiff  until 
after  the  attachment ;  but  on  the  next  day  the  plaintiff  gave 
notice  to  defendants,  and  demanded  the  share  of  Carpenter 
of  this  coin  still  in  their,  or  their  agent's,  possession.  De- 


268  JUSTICES'  TREATISE. 

fondants  refused  "to  pay  it  over,  but  afterwards  paid  it  to 
the  constable.     Upon  these  facts  the  judge  found  that  the 
plaintiff  could  not  recover,  basing  his  judgment  upon  the 
provisions  of  the  statute  of  frauds,  which  require  posses 
sion  of  personal  property  to  accompany  and  follow  a  sale 
in  order  to  its  validity  as  to  third  persons.     The  supreme 
court  say  :  "  In  this  ruling  we  think  the  court  below  mani 
festly  erred.     The  statute  has  no  application  to  such  a  case 
as  this.     The  property  here  was  joined  ;  Carpenter  had  no 
defined  and  exclusive  interest  in  any  part,  but  merely  a 
common  interest  in  all  with  his  partners.     The  property 
was  in  constructive  possession  of  all,  the  possession  of  the 
bailees  being  the  possession  of  their  principals.     It  was 
not  money,  but  to  be  converted  into  money.     After  it  was 
so  converted,  it  required  division  before  any  particular  por 
tion  of  the  coin  became  the  property  of  any  one  of  the 
partners.     The  right  of  Carpenter  was  a  chose  in  action, 
which  he  could  assign  in  any  legal  mode.     He  could  assign 
it  by  order  in  favor  of  the  purchaser  or  assignee.     He  did 
so  assign.     At  the  time  of  the  assignment  there  was  no 
possibility  of   a  manual   delivery  of   the   specific   coin  to 
which  he  was  entitled.     The  order  was  a  good  assignment 
of  his  right,  after  which   Carpenter   had  no  title  to  the 
money,   and   his   creditors,    representing    only  his   right, 
could  not  seize  it  for  his  debts.     The*case  is  not  different 
from  the  case  of  an  order  on  a  banker  for  a  general  balance, 
in  which  case  the  order  operates  a  complete  assignment, 
and  protects,  if  the  transaction  be  fair  and  for  a  valuable 
consideration,  the  money  against  the  process  of  creditors. 
The  service  of  the  attachment  upon  the  defendants  was 
only  a  garnishment ;  and  it  is  well  settled  that  this  does 
not  give  the  creditor  precedence  over  assignees  of  the  fund 
when  the  assignment  is  prior  to  the  service  of  the  garnish 
ment.     Watting  vs.  Miller  &  Co.,  15  Cal.  39,  40. 

The  Execution  of  the  Writ. 

SEC.  42.  The  sheriff  or  constable  to  whom  the  writ  is 
directed  and  delivered  shall  execute  the  same  without 
delay,  and  if  the  undertaking  mentioned'  in  section  one 
hundred  and  twenty-three  be  not  given,  as  follows  : 


ATTACHMENT.  269 

1st.  Eeal  property  standing  upon  the  records  of  the 
county  in  the  name  of  the  defendant  shall  be  attached  by 
leaving  a  copy  of  the  writ  with  an  occupant  thereof,  or  if 
there  be  no  occupant  by  posting  a  copy  in  a  conspicuous 
place  thereon,  and  filing  a  copy,  together  with  a  description 
of  the  property  attached,  with  the  recorder  of  the  county. 

2d.  Real  property,  or  any  interest  therein,  belonging  to 
the  defendant,  and  held  by  any  other  person  or  standing 
on  the  reords  of  the  county  in  the  name  of  any  other  per 
son,  shall  be  attached  by  leaving  with  such  person  or  his 
agent  a  copy  of  the  writ  and  a  notice  that  such  real  prop 
erty  [giving  a  description  thereof]  and  any  interest  there 
in,  belonging  to  the  defendant,  are  attached  pursuant  to 
such  writ,  and  filing  a  copy  of  such  writ  and  notice  with 
the  recorder  of  the  county,  and  leaving  a  copy  of  such  writ 
and  notice  with  an  occupant  of  such  property,  or  if  there 
be  no  occupant  by  posting  a  copy-thereof  in  a  conspicuous 
place  thereon. 

3d.  Personal  property  capable  of  manual  delivery  shall 
be  attached  by  taking  it  into  custody. 

4th.  Stock  or  shares  of  interest  in  stock,  or  shares  of  any 
corporation  or  company,  shall  be  attached  by  leaving  with 
the  president  or  other  head  of  the  same,  or  the  secretary, 
cashier  or  other  managing  agent,  thereof,  a  copy  of  the  writ 
and  a  notice  stating  that  the  stock  or  interest  of  the  defend 
ant  is  attached  in  pursuance  of  such  writ. 

5th.  Debits  and  credits  and  other  personal  property  not 
capable  of  manual  delivery  shall  be  attached  by  leaving 
with  the  person  owning  such  debts,  or  having  in  his  pos 
session,  or  under  his  control,  such  credits  and  other  per 
sonal  property,  or  with  his  agent,  a  copy  of  the  writ  and 
a  notice  that  the  debts  owing  by  him  to  the  defendant,  on 
the  credits  and  other  personal  property  in  his  possession 
or  under  his  control  belonging  to  the  defendant,  are  at 
tached  in  pursuance  of  such  writ.  Gen.  Laws,  5065,  5486. 

SEC.  43.  Upon  receiving  information  in  writing  from  the 
plaintiff  or  his  attorney,  that  any  person  has  in  his  pos 
session  or  under  his  control,  any  credits  or  other  personal 
property  belonging  to  the  defendant,  or  is  owing  any  debt 
to  the  defendant,  the  sheriff  or  constable  shall  serve  upon 


270  JUSTICES'  TKEATISE. 

such  person  a  copy  of  the  writ,  and  a  notice  that  such  cred 
its,  or  other  property  or  debts,  as  the  case  may  be,  are  at 
tached  in  pursuance  of  such  writ.  Pr.  Act,  126 ;  Gen.  Laws, 
5066,  5486. 

SEC.  44.  The  service  of  an  attachment  is  not  the  bring 
ing  of  an  action.  9  Col.  28. 

SEC.  45.  The  deposit  in  the  recorder's  office  of  a  copy  of 
the  writ,  with  a  description  of  the  property  attached,  is  suf 
ficient  to  operate  as  notice  of  the  lien  to  third  parties.  11 
Gal.  238. 

I/  SEC.  46.  The  statute  provides  that  an  attachment  of  real 
property  shall  be  made  by  the  officer  to  whom  the  writ  is 
directed,  ' '  by  leaving  a  copy  of  the  writ  with  the  occupant 
thereof;  or  if  there  be  no  occupant,  by  posting  a  copy  in  a 
conspicuous  place  thereon,  and  filing  a  copy,  together  with 
a  description  of  the  property  attached,  with  the  recorder  of 
the  county."  The  two  acts  prescribed — the  delivery  to  the 
occupant  of  a  copy  of  the  writ,  or  the  posting  of  a  copy  upon 
the  premises,  as  the  case  may  be,  and  the  filing  of  a  copy  in 
the  recorder's  office,  with  a  description  of  the  property 
attached — must  be  done  before  the  lien  of  the  attachment  is 
perfected.  The  omission  of  either  is  fatal  to  the  creation  of 
the  lien.  The  two  acts  are  requisite  to  perfect  the  attach 
ment.  It  is  the  duty  of  the  officer,  after  he  has  once  entered 
upon  the  execution  of  the  writ,  to  complete  its  execution 
with  diligence.  In  the  case  of  Wheaton  vs.  Neville,  the  su 
preme  court  say:  "The  writ  was  issued  at  the  commence 
ment  of  the  action  of  Scott,  Vantine  and  others,  against 
Brown,  on  the  twenty-sixth  of  August,  and  a  copy  was  de 
livered  to  the  occupant  of  the  premises,  or  posted  upon 
them,  on  the  twenty-ninth  of  the  same  month.  On  this  last 
day  the  writ  was  returned  with  a  certificate  of  the  sheriff's 
proceedings,  and  filed  in  the  clerk's  office;  but  no  copy  of 
the  writ,  with  a  description  of  the  property,  was  filed  in 
the  recorder's  office  until  the  ninth  of  September  following. 
On  the  sixth  of  September,  Dimock  purchased  and  took  a 
conveyance  of  the  premises  from  Brown;  and  the  question 
for  determination  is,  whether  the  subsequent  filing  of  the 
papers  in  the  recorder's  office  gave  effect  to  the  attachment, 
from  the  date  of  the  posting  or  delivery  of  the  copy  of  the 


ATTACHMENT.  271 

writ,  so  as  to  create  a  lien  upon  these  premises."  We  are 
clear  that  the  filing  in  the  recorder's  office  had  no  such  effect, 
independent  of  any  consideration  of  the  applicability  of  the 
doctrine  of  relation.  After  the  return  of  the  writ  to  the 
clerk's  office,  the  sheriff  had  no  authority  to  take  any  pro 
ceedings  for  the  completion  of  the  attachment,  which  he  had 
previously  omitted.  Its  efficacy  as  a  warrant  of  authority  to 
him  was  limited  to  acts  performed  whilst  it  remained  in  his 
possession.  The  filing  was  therefore  ineffectual  for  any 
purpose;  and  the  posting  of  a  copy  of  the  writ  upon  the 
premises,  or  the  delivery  of  a  copy  to  the  occupant  was,  of 
itself,  insufficient  to  perfect  the  attachment.  There  was,  in 
consequence,  no  lien  created  upon  the  premises.  Wheaton 
vs.  Neville,  9  Cal.  44,  45. 

SEC.  47.  A  levy  upon  personal  property  is  the  act  of 
taking  possession  of,  seizing  or  attaching,  it  by  the  sheriff  or 
other  officer.  14  Cal.  50,  51. 

SEC.  48.  A  sheriff  who  levies  a  writ  of  attachment  upon 
personal  property,  in  obedience  to  the  commands  of  the 
writ,  has  no  right  to  let  the  property  go  out  of  his  hands, 
except  in  due  course  of  law;  and  if  he  does,  and  the  debt  is 
lost,  he  is  responsible  to  the.  plaintiff  in  the  attachment'  for 
the  amount  of  the  debt.  12  Cal.  539. 

SEC.  49.  A  levy  may  be  good  as  against  the  defendant 
in  the  writ,  when  it  would  not  be  good  as  to  third  persons. 
This  distinction  is  not  based  upon  any  difference  in  the 
legal  requisites  of  a  levy,  but  in  the  fact  that  the  conduct 
of  the  defendant,  either  by  positive  or  negative  acts,  may 
amount  to  a  waiver  or  an  estoppel,  or  an  agreement  that 
that  shall  be  a  levy  which,  without  such  conduct,  would  not 
be  sufficient.  14  Cal.  50. 

SEC.  50.  Where  an  officer  attaches  the  property  of  the 
defendant,  he  does  not  act  as  the  agent  of  the  plaintiff,  but 
as  the  officer  of  the  law;  but  when  he  attaches  property 
that  does  not  belong  to  the  defendant,  he  goes  beyond  the 
command  of  the  writ,  and  acts  as  the  agent  of  the  party  at 
whose  instance  he  does  the  act.  8  Cal.  259. 

SEC.  51.  A  writ  placed  in  the  sheriff's  hands  on  Sunday 
cannot  be  officially  received  by  him  on  that  day.  It  can 
only  be  considered  officially  in  his  hands  when  Sunday  has 
expired.  13  Cal.  340. 


272  JUSTICES'  TREATISE. 

SEC.  52.  The  sheriff  can  no  more  officially  receive  a  writ 
on  Sunday  for  service  on  Sunday  than  he  can  execute  it  on 
Sunday.  Both  these  acts  are  of  the  same  general  charac 
ter,  and  equally  within  the  prohibition  of  the  statute.  Not 
receiving  it  then  as  sheriff,  he  receives  it  as  the  mere  agent 
of  the  plaintiff.  He  so  receives  it,  not  to  execute  it  on 
Sunday,  or  to  deal  with  it  as  a  writ  coming  to  him  on  that 
day  as  an  officer.  He  may  be  bound  as  an  agent  to  deliver 
it  to  the  sheriff,  or  to  treat  it  as  delivered  when  he  can  act. 
But  this  is  a  personal,  not  an  official,  contract ;  it  is  a  mere 
bailment  which  binds  him,  probably  as  a  man,  but  does  not 
bind  him  as  a  sheriff,  and  if  he  choose  to  disregard  it 
entirely  he  is  not  bound  as  an  officer.  13  Cal.  341,  342. 

SEC.  53.  Where  one  writ  of  attachment  was  placed  in 
the  sheriff's  hands  on  Sunday,  and  another  against  the  same 
defendant  was  placed  in  the  hands  of  a  deputy  at  a  quarter 
past  twelve  on  Monday  morning,  the  sheriff  not  knowing 
the  fact,  and  the  first  levy  was  made  under  the  last  writ  at 
one  o'clock  Monday  morning,  the  sheriff  was  not  guilty  of 
negligence  in  executing  the  first  writ — no  special  circum 
stances  being  shown. 

SEC.  54.  A  deputy  sheriff  who  seizes  property  under  an 
attachment,  is  not  authorized  by  virtue  of  his  office  to  bind 
the  sheriff  by  contract  for  the  payment  of  a  keeper  to  take 
charge  of  the  property  so  attached.  Special  authority  for 
this  purpose  must  be  shown.  '  12  Cal.  412. 

"When  the  Lien  takes  Effect 

SEC.  55.  Attachments  do  not  bind  the  property  of  the 
defendant  from  the  time  of  the  issuance,  but  only  from  the 
time  of  the  actual  levy.  13  Cal.  341. 

SEC.  56.  They  are  effectual  to  change  the  title  of  per 
sonal  property  from  the  time  of  levy.  14  Cal.  50. 

SEC.  57.  The  attachment  first  levied  by  our  statute  has 
the  priority.  13  Cal.  341. 

SEC.  58.  The  lien  of  an  attaching  creditor  of  real  estate 
takes  effect  immediately  upon  the  levy  of  the  attachment, 
and  the  deposit  of  a  copy  of  the  writ,  together  with  a  de 
scription  of  the  land  attached,  with  the  county  recorder. 
11  Cal.  238. 


ATTACHMENT.  273 

SEC.  59.  Plaintiff,  January  10th,  1858,  in  a  suit  entitled 
*'C.  &  M.  et  al.,  composing  the  Wisconsin  Quartz  Mining 
Co.,"  a  corporation  attached  to  a  quartz  mill  and  ledge  be 
longing  to  the  corporation.  June  26th,  1858,  the  complaint 
was  amended  so  as  to  make  the  corporation,  as  such,  the 
party  defendant,  and  judgment  was  rendered  against  the 
company  August  14th,  1858,  the  property  sold,  and  plaintiff 
the  purchaser.  October,  1857,  "W.  received  from  the  cor 
poration  a  chattel  mortgage  on  this  property,  had  decree 
of  foreclosure  August  9th,  1858,  sale  October  following, 
"W.  the  purchaser.  Defendants  were  in  possession  under 
sheriff's  sale  on  the  decree.  Plaintiff  derived  title  under 
his  judgment  and  sale.  It  was  held,  that  he  could  not 
recover;  that  he  acquired  no  lien  by  his  attachment,  be 
cause  the  property  attached  belonged  to  the  corporation, 
which  was  not  a  party  to  the  suit  until  after  the  levy  and 
return  of  the  writ ;  that  plaintiff's  right  only  attached  from 
the  date  of  his  judgment,  August  14th,  1858,  and  his  lien 
being  subsequent  to  the  lien  of  W.'s  judgment,  August  9th, 
1858,  under  which  defendants'  claimed  the  latter  had  the 
better  right.  16  Gal  403. 

Contests  between  Attaching  Creditors. 

SEC.  60.  In  contests  between  attaching  creditors-  the 
rule  :  "  Qui  prior  est  in  tempore,  potior  est  injure,"  prevails. 
6- Cal.  297. 

SEC.  61.  In  such  contests  all  the  equities  are  in  favor  of 
the  most  diligent,  and  an  irregularity  cannot  be  taken  ad 
vantage  of  by  a  stranger  to  the  action  in  which  it  occurs. 
The  subsequent  execution  or  attachment  creditor  can  claim 
no  equitable  relief.  If  the  proceedings  of  the  prior  cred 
itor  are  not  void,  but  voidable,  the  defendant  can  alone 
object.  8  Cal.  573. 

SEC.  62.  A  junior  attaching  creditor  cannot  take  advan 
tage  of  irregularities  in  the  affidavit  or  bond  given  by  a 
prior  attaching  creditor  of  a  common  debtor.  18  Cal.  152. 

SEC.  63.  Whatever  irregularities  may  exist  in  the  pro 
ceedings  of  an  attaching  creditor,  it  is  a  well-settled  rule 
that  other  attaching  creditors  cannot  make  themselves  par 
ties  to  those  proceedings  for  the  purpose  of  defeating  them 
35 


274  JUSTICES'  TKEATISE. 

on  that  account  (18  Cal.  154),  as  where  the  irregularity  con 
sisted  in  the  omission  of  the  plaintiff  to  make  affidavit  of 
his  debt  before  suing  out  the  writ  of  attachment;  in  the 
omission  to  give  the  requisite  bond;  in  giving  the  attach 
ment  bond  in  double  the  debt,  instead  of  double  the  dam 
ages  or  sum  sued  for;  in  the  omission  to  return  the  attach 
ment  bond,  and  in  giving  an  insufficient  bond.  18  Cal.  155. 

SEC.  64.  But  where  an  attachment  is  based  on  a  fraudu 
lent  demand,  or  one  which  has  in  fact  no  existence,  it  is 
otherwise,  as  will  appear  from  a  review  of  the  action  of 
courts  of  a  higher  order  of  learning  and  ability.  18  Cal. 
154. 

SEC.  65.  An  action  was  commenced  by  attachment  to 
recover  an  alleged  indebtedness,  and  defendants  made  de 
fault  ;  before  the  entry  of  judgment,  certain  subsequent 
attaching  creditors  intervened  and  contested  the  validity  of 
the  plaintiff's  attachment,  on  the  ground  that  no  debt  was 
really  due  from  defendants  to  plaintiff.  On  the  issue  thus 
raised  the  court  found  in  favor  of  the  intervenors,  and 
thereupon  entered  an  order  setting  aside  the  attachment 
of  plaintiff.  It  was  held,  that  the  order  was  erroneous  in 
entirely  setting  aside  the  plaintiff's  attachment,  and  must 
be  modified  so  as  merely  to  postpone  the  plaintiff's  lien  to 
that  of  the  intervenors.  21  Cal.  281. 

SEC.  66.  In  some  cases,  third  parties  have  been  allowed 
to  intervene  where  the  debtor  was  shown  not  to  be  subject 
to  the  process,  oj  the  defendant's  property  not  so  subject. 
But,  if  the  defendant  does  not  insist  upon  the  statutory 
steps  being  taken  in  the  matter  of  a  bond  or  affidavit,  in 
the  proper  form,  a  creditor  cannot  interfere,  any  more  than 
in  the  case  of  a  judgment  rendered  upon  an  insufficient  com 
plaint,  or  otherwise  irregular  and  reversible.  18  Cal.  155. 

SEC.  67.  In  an  attachment  suit,  judgment  creditors  of 
defendant  may  intervene  to  set  aside  the  attachment  be 
cause  void  as  to  them.  18  Cal.  378. 

SEC.  68.  The  case  of  Davis  vs.  Eppinger  was  a  proceed 
ing  by  attachment  to  recover  the  amount  of  a  promissory 
note  executed  by  the  defendant,  Eppinger.  The  note  was 
drawn  payable  one  day  after  date  without  grace,  and  the  suit 
was  commenced  on  the  day  following  its  execution.  The 


ATTACHMENT.  .  275 

attachment  was  issued  at  the  commencement  of  the  suit, 
and  levied  upon  all  the  property  of  which  Eppinger  was 
the  owner.  A  petition  of  intervention  was  filed  by  certain 
judgment  creditors  of  Eppinger,  seeking  relief  against  the 
attachment.  The  supreme  court  say :  If  the  intervenors 
have  any  rights  in  the  premises,  we  are  satisfied  that  they 
have  pursued  the  proper  remedy.  On  this  point  it  is  only 
necessary  to  refer  to  previous  decisions  of  this  court  in 
which  the  subject  has  been  fully  considered.  Tuba  County 
vs.  Adams,  7  Cal.  35;  Dixey  vs.  Pollock,  8  Cal.  570.  The 
point  in  relation  to  the  commencement  of  the  suit  has  also 
been  settled  by  this  court,  and  there  is  no  doubt  that  the 
action  was  prematurely  brought.  Wilcombe  vs.  Dodge,  3 
Cal.  260;  McFarlandva.  Pico,  8  Cal.  626.  The  only  ques 
tion  of  importance  is  whether  the  plaintiff  acquired  by  his 
attachment  a  valid  lien  upon  the  property  of  Eppinger.  If 
he  did  not,  the  intervenors  are  undoubtedly  entitled  to  re 
lief,  and  our  opinion,  upon  a  careful  examination  of  the 
question,  is  that  he  did  not.  He  relies  upon  the  case  of 
Patrick  vs.  Montader  (18  Cal.  434),  but  in  doing  so  he  evi 
dently  overlooks  the  essential  elements  of  that  case.  There 
the  debt  was  held  to  be  equitably  due,  and  the  decision  was 
placed  expressly  upon  that  ground.  It  was  admitted  "that 
an  attachment  is,  at  least,  prima  facie,  void  as  against  an 
other  attachment,  where  the  first  is  issued  before  the  ma 
turity  of  the  debt."  But  as  the  debt  in  that  case  was  equi 
tably  due,  the  court  would  not  interfere  to  deprive  the 
creditor  of  his  advantage.  His  suit  had  been  improperly 
brought,  but  he  was  entitled  to  the  benefit  of  the  equities 
in  his  favor.  This  is  all  that  was  decided;  and  in  what  par 
ticular  the  two  cases  can  be  regarded  as  analogous  we'  are 
unable  to  perceive.  In  this  case  the  debt  was  not  due  either 
legally  or  equitably,  and  the  pretensions  of  the  plaintiff  are 
based  upon  the  bold  proposition  that  the  validity  of  the 
attachment  cannot  be  impeached  upon  that  ground.  This 
proposition  is  not  supported  by  any  of  the  authorities,  and 
we  are  aware  of  no  principle  upon  which  it  could  be  main 
tained.  Drake,  in  his  work  on  attachment  (Sec.  778),  lays 
down  the  doctrine  broadly,  that  "where  an  attachment  ap 
pears  to  have  issued  on  a  debt  not  due,  it  will  be  set  aside 


276  JUSTICES'  TKEATTSE. 

in  favor  of  a  junior  attachment  upon  a  debt  that  was  due." 
In  Pierce  vs.  Jackson  (6  Mass.  242),  the  court  said:  "If  the 
plaintiff,  when  he  caused  the  attachment  to  be  made  on  his 
writ,  had  no  cause  of  action,  he  cannot  claim  the  benefit  of 
his  attachment  against  a  creditor  having  a  good  cause  of 
action."  In  Sivift  vs.  Crocker  (21  Pick.  241),  the  language 
of  the  court  was  equally  emphatic  :  the  question  being 
whether  the  claim  of  the  plaintiff  was  due  and  payable  at 
the  time  of  instituting  the  suit.  "  If  not,"  said  the  court, 
"the  subsequent  attaching  creditors  will  sustain  their  peti 
tion,  and  the  attachment  by  the  plaintiff  must  be  dissolved." 
In  Smith  vs.  Gettinger  (3  Geo.  140),  a  similar  question  was 
presented,  and  the  same  conclusion  arrived  at;  and  in  Hale 
vs.  Chandler  (3  Gibbs,  531),  the  court  said:  "It  is  estab 
lished  by  a  uniform  course  of  decisions  in  "this  court,  that 
to  entitle  a  party  to  commence  a  suit  in  attachment,  he  must 
have  a  present  cause  of  action  at  the  time  he  makes  his  affi 
davit,  and  sues  out  his  writ."  The  controversy  -was  between 
creditors,  and  an  attachment  issued  before  the  maturity  of 
the  debt  was  set  aside.  We  might  refer  to  many  additional 
authorities,  but  they  proceed  upon  the  same  ground,  and  it 
is  therefore  unnecessary  to  do  so.  The  universal  language 
of  the  cases  is,  that  an  attachment  issued  upon  a  debt  not 
due,  is  void  as  against  creditors  whose  rights  are  injuri 
ously  affected  by  it.  In  other  words,  an  attachment  so 
issued  has  always  been  regarded  as  a  fraud  upon  the  rights 
of  such  creditors.  We  accord  to  this  doctrine  our  unquali 
fied  approval,  and  consider  it  decisive  of  the  present  case. 
18  Gal.  380-382. 

Garnishment. 

SEC.  69.  All  persons  having  in  their  possession  or  under 
their  control,  any  credits  or  other  personal  property,  belong 
ing  to  the  defendant,  or  owing  any  debts  to  the  defendant 
at  the  time  of  service  upon  them  of  a  copy  of  the  writ  and 
notice,  as  provided  in  the  last  two  sections,  shall  be,  unless 
such  property  be  delivered  up  or  transferred,  or  such  debts 
be  paid  to  the  sheriff  or  constable,  liable  to  the  plaintiff, 
for  the  amount  of  such  credits,  property  or  debts,  until  the 
attachment  be  discharged,  or  any  judgment  recovered  by 
him  be  satisfied.  Pr.  Act,  127;  Gen.  Laws,  5067,  5486. 


ATTACHMENT.  277 

SEC.  70.  The  one  hundred  and  twenty-seventh  section 
makes  the  garnishee  liable  to  the  plaintiff  in  the  attachment 
suit  for  the  amount  of  such  property,  unless  the  same  be 
delivered  up  or  transferred  to  the  sheriff.  Under  the  pro 
visions  of  this  section,  the  garnishee  may  protect  himself 
from  all  further  liability  by  delivering  the  property  to  the 
sheriff.  This  is  a  right  which  may  be  voluntarily  exercised 
by  the  garnishee.  If  he  delivers  to  the  sheriff  any  prop 
erty,  he  cannot  be  made  further  responsible  for  the  property 
delivered.  9  Gal  266. 

SEC.  71.  The  doctrine  of  garnishment  is  part  of  the  com 
mon  law  derived  from  the  custom  of  London,  and  although 
it  is  here  partially  regulated  by  statute,  it  is  not  the  less  a 
common-law  proceeding.  5  Cal.  294. 

SEC.  72.  The  garnishee  is  regarded  by  the  law  somewhat 
in  the  light  of  a  trustee,  and  is  bound  to  protect,  by  legal 
and  appropriate  steps,  the  rights  of  all  parties  to  the  goods 
or  credits  attached  in  his  hands;  and  if,  after  notice,  though 
execution  may  have  been  awarded  against  him,  he  shall 
satisfy  the  judgment,  it  will  be  in  his  own  wrong,  and  con 
stitutes  no  valid  defense  to  the  claim  of  the  assignee.  The 
garnishee,  knowing  the  facts,  should  set  them  up  in  some 
way,  in  resistance  to  the  proceeding;  if  necessary,  perhaps, 
he  might  file  an  interpleader  for  his  protection,  or  at  least, 
appeal  from  the  irregular  and  unauthorized  judgment.-  11 
Cal.  350. 

SEC.  73.  A  garnishee  can  only  be  required  to  answer  as 
to  his  liability  to  the  debtor  defendant  at  the  time  of  the 
service  of  the  garnishment.  The  garnishment  is  an  attach 
ment  of  existing  debts,  and  what  does  not  exist  cannot  be 
attached.  4  Cal.  410. 

SEC.  74.  From  the  very  nature  of  a  promissory  note  it  is 
evident  that,  before  its  maturity,  the  indebtedness  of  the 
maker  thereon  cannot  be  the  subject  of  attachment.  His 
obligation  is  not  to  the  payee  named  in  the  note,  but  to  the 
holder,  whoever  he  may  be.  From  its  negotiability  it  may 
often  pass  into  the  possession  of  parties  entire  strangers  to 
the  maker,  and  even  if  held  by  the  defendant  at  the  time  of 
garnishment  it  does  not  follow  that  it  would  be  in  his  hands 
at  its  maturity,  and,  if  transferred  before  maturity  to  a 


278  JUSTICES'  TKEATISE. 

bonafide  holder,  it  could  be  enforced,  even  if  paid  upon  the 
attachment.  It  follows,  that  the  notice  of  attachment 
served  upon  the  maker  of  a  note,  previous  to  its  maturity, 
does  not  operate  as  a  garnishment  of  the  amount  in  his 
hands.  Nor  would  the  notice,  served  subsequent  to  the 
maturity,  have  any  greater  effect  unless  the  note  was  at  the 
time  in  the  possession  of  the  defendant,  from  whom  its  de 
livery  could  be  enforced  on  its  payment  upon  the  attach 
ment.  10  Cal  340. 

SEC.  75.  A  justice  may  render  judgment  against  a  gar- 
nishee  for  a  sum  within  his  jurisdiction,  though  the  gar- 
nishee's  indebtedness  to  the  defendant  exceeds  the  justice's 
jurisdiction.  19  Mo.  (4  Bennett)  201. 

SEC.  76.  A  plaintiff  who  has  sued  out  an  attachment  and 
given  the  necessary  notice  to  a  garnishee  that  the  property 
in  his  hands  is  attached,  and  subsequently  the  garnishee 
fraudulently  disposes  of  the  property,  has"  a  right  to  waive 
his  lien  on  the  property,  and  bring  suit  for  the  value  of  the 
property  against  the  garnishee.  9  Cal.  262. 

SEC.  77.  If  a  statute  gives  a  particular  remedy  in  con 
ferring  a  new  right,  then  the  particular  remedy  must  be 
pursued.  But  in  this  case  a  new  right  was  created,  but  no 
practicable  remedy  prescribed.  9  Cal.  267. 

SEC.  78.  In  the  case  of  McFadden  et  al.  vs.  O'Donnell,  the 
plaintiff  sued  defendant  on  indebtedness  for  work,  etc.  Be 
fore  the  commencement  of  this  suit,  one  Webster  sued  Mc 
Fadden  and  got  out  attachment,  upon  which  O'Donnell  was 
garnisheed  as  the  debtor  of  McFadden,  the  plaintiff.  Web 
ster  recovered  judgment  against  McFadden,  but  proceeded 
no  further.  After  the  commencement  of  this  suit  McFadden 
paid  Webster  his  debt.  This  matter  of  the  garnishment 
was  insisted  on  by  O'Donnell  as  presenting  a  bar  or  matter 
of  abatement  to  this  action.  The  supreme  court  say:  This 
is  not  its  legal  effect.  The  mere  attachment  of  the  debt  did 
not  destroy  the  relations  of  debtor  and  creditor  between 
McFadden  and  O'Donnell.  It  gave  a  right  to  Webster  to 
subject  the  debt  to  the  payment  of  his  claim;  but  this  right 
might  be  waived,  or  it  might  be  destroyed  by  the  payment 
of  the  debt  by  McFadden.  It  is  true  O'Donnell  could  not 
safely  pay  McFadden  as  long  as  this  proceeding  was  in 


ATTACHMENT.  279 

force;  and  the  court  will  not  compel  him  to  do  so,  since 
that  would  subject  him  to  a  double  payment  in  the  event  of 
the  attaching  creditors  obtaining  judgment.  But  the  court 
may  act  in  perfect  consistency  with  the  rights  of  all  the 
parties.  The  proper  course  is  to  order  a  suspension  of 
action  by  the  original  creditor  until  the  proceedings  of  the 
attachment  creditor  are  disposed  of.  This  order  of  suspen 
sion  is  enough  to  secure  the  rights  of  all  concerned.  If  the 
mere  pendency  of  the  garnishment  worked  a  disability  to 
sue,  the  plaintiff  might  be  unreasonably  delayed,  and,  by 
one  or  more  collusive  proceedings,  the  statute  of  limitations 
might  bar  the  claim.  This  doctrine  is  thoroughly  discussed 
in  the  case  of  Crawford  vs.  Slade  (9  Ala.  887),  and  the  cases 
cited.  It  is  true  that  some  authorities  of  great  weight  seem 
to  announce  a  different  rule ;  but  we  think  the  better  and 
more  equitable  principle  is  as  we  have  stated  it.  18  CaL 
164. 

Form  of  Garnishment. 

SEC.  79.     The  following  is  a  form  of  garnishment: 

Justice's  court, township. 

To 

You  are  hereby  notified,  that  all  the  debts  owing  by  you  to  the  within- 
named  defendants  or  either  of  them,  and  all  the  credits,  and  all  other  per 
sonal  property  in  your  possession  or  under  your  control,  belonging  to  the 
said  defendants  or  either  of  them,  or  so  much  thereof  as  will  satisfy  the 
plaintiff's  demand,  to  wit:  ....  dollars,  gold  coin  of  the  United  States, 
besides  ....  dollars  costs,  and  also  all  accruing  costs ;  and  that  ....  shares 
of  the  capital  stock,  and  all  the  interest  of  said  defendants  or  either  of  them 
therein,  of  the  ....  gold  and  silver  mining  company,  of  which-  you  are  the 
secretary,  standing  in  the  name  of  said  defendant  on  the  books  of  said  com 
pany,  and  that  the  real  property,  a  description  whereof  is  hereunto  annexed 
and  any  interest  therein,  belonging  to  the  said  defendants  or  either  of  them, 
are  attached,  in  pursuance  of  the  writ  of  attachment,  of  which  the  within  is 
a  true  copy. 

And  you  are  hereby  notified  not  to  transfer,  pay  over  or  deliver,  the  same 
to  any  one  but  myself. 

Please  famish  a  statement. 

Dated  this day  of ..,  A.D.  18  ... 


Constable township. 

Examination  of  Defendant /and  his  Debtor  or  Bailee. 

SEC.  80.     Any  person  owing  debts  to  the  defendant,  or 
having  in  his  possession  or  under  Jlis  control  any  credits  or 


280  JUSTICES'  TEEATISE. 

other  personal  property  belonging  to  the  defendant,  may  be 
required  to  attend  before  the  justice,  or  a  referee  appointed 
by  the  justice,  and  be  examined  on  oath  respecting  the 
same.  The  defendant  may  also  be  required  to  attend  for 
the  purpose  of  giving  information  respecting  his  property, 
and  may  be  examined  on  oath.  The  justice  may,  after 
such  examination,  order  personal  property  capable  of  man 
ual  delivery  to  be  delivered  to  the  sheriff  or  constable  on 
such  terms  as  may  be  just,  having  reference  to  any  liens 
thereon  or  claims  against  the  same,  and  a  memorandum  to 
be  given  of  all  other  personal  property,  containing  the 
amount  and  description  thereof.  Pr.  Act,  128;  Gen.  Laws, 
5068,  5486. 

SEC.  81.  The  provisions  of  sections  one  hundred  and 
twenty-seven  and  one  hundred  and  twenty-eight  wrere  in 
tended  to  secure  the  property  after  the  lien  has  attached. 
If,  therefore,  this  object  is  already  secured,  the  court  from 
which  the  attachment  issues  will  not  proceed  any  further. 
The  court  issuing  the  attachment  has  the  power  in  proper 
cases  to  order  the  property  to  be  delivered  to  the  sheriff. 
But  this  discretion  must  be  soundly  exercised.  9  Gal.  28, 
29. 

SEC.  82.  But  the  provisions  of  the  one  hundred  and 
twenty-eighth  section  were  intended  for  the  security  of  the 
plaintiff,  who  may  cause  the  garnishee  to  appear  and  answer 
under  oath;  and  the  court  or  judge  may  require  the  delivery 
of  the  property  to  the  sheriff.  The  plaintiff  may  not  be 
willing  to  trust  to  the  personal  responsibility  of  the  gar 
nishee  pending  the  attachment  proceedings,  and  may  have 
the  best  reasons  for  demanding  the  delivery  of  the  property 
to  the  sheriff.  This  section,  however,  was  not  intended  to 
confer  a  privilege  upon  the  garnishee.  The  privilege  of  ex 
amination  on  oath  is  for  the  security  of  the  plaintiff'  and  not 
of  the  garnishee.  If  the  statement  of  the  garnishee  consti 
tuted  the  measure  and  limit  of  his  liability,  then  he  would 
have  the  right  to  insist  upon  it  as  a  condition  precedent  to 
any  suit  against  him.  It  follows,  that  the  plaintiff  may  or 
may  not,  at  his  election,  require  the  garnishee  to  appear  and 
answer  on  oath,  and  that  the  liability  of  the  garnishee  will 
not  be  affected  by  the  failure  of  the  plaintiff  to  take  such 


ATTACHMENT.  281 

a  step.  If  he  is  willing  to  rely  upon  the  responsibility  of 
the  garnishee  and  upon  other  testimony  to  prove  the  facts 
as  to  the  property,  he  has  the  right  to  do  so  without  releas 
ing  the  garnishee.  9  Col.  266. 

SEC.  83.  Where  a  garnishee,  in  discharge  of  a  rule, 
answers  under  oath,  that  he  was  released  by  the  plaintiff 
from  his  obligation  to  answer,  and  that  the  plaintiff  had 
abandoned  his  examination,  he  should  be  discharged  by  the 
court  without  further  delay,  unless  his  answer  is  contro 
verted  by  the  affidavit  of  the  plaintiff.  And  while  a  party 
is  garnisheed  to  answer  on  a  certain  day,  and  appears,  and 
the  summoning*party  declines,  or  is  not  prepared  to  take 
his  answer,  and  a  term  elapses  without  any  action  on  the 
garnishment,  the  summons  is  discontinued,  and  the  party 
discharged  from  liability  to  answer.  This  rule  results  from 
the  peculiar  relationship  of  the  garnishee  to  the  action. 
He  at  first  partakes  more  of  the  character  of  a  witness  than 
a  party;  and  as  well  might  a  witness  be  expected  forever  to 
appear  because  of  one  summons  for  a  certain  day.  The 
business  relations  of  men,  who  thus  become  incidentally 
connected  with  the  litigation  of  others,  cannot  be  allowed 
to  be  indefinitely  suspended  on  account  of  the  gross  laches 
of  those  others.  3  Cal.  254. 

Form  of  Order  of  Examination  of  Defendant 

SEC.  84.  The  following  is  a  form  of  order  of  examination 
of  defendant : 

In  the  justice's  court  of  ....  township,  in  the  county  of ,  state  of  .... 


plaintiff, 
against 


defendant. 

The  people  of  the  state  of , 

To ,  greeting  : 

Whereas,  it  has  been  alleged  and  made  to  appear  to  the  undersigned,  jus 
tice  of  the  peace  of  said  township,  that  an  attachment  has  been  duly  issued 
out  of  this  court  against  your  property  and  is  still  in  force,  and  that  you 
have  in  your  possession  or  under  your  control  certain  debts,  moneys,  effects, 
credits  and  other  property,  owing  to  or  belonging  to  you  : 

You  are  therefore  commanded  to  be  and  appear  before  me,  at  my  office  in 
said  township  in  said  city  and  county,  on  the  ....  day  of  . . . .,  A.D.  18. .,  at 

36 


282  JUSTICES'  TREATISE. 

....  o'clock  . . . .,  then  and  there  to  be  examined  on  oath  concerning  the 
same  ;  and  you  are  further  commanded  not  to  pay,  transfer,  return  or  other 
wise  part  with  or  dispose  of,  any  such  debts,  moneys,  effects,  credits  or 
other  property,  until  duly  released  according  to  law. 
Given  under  my  hand,  this  ....  day  of  ....  A.D  18. . 


Justice  of  the  peace  of  said  township. 

Form  of  Constable's  Certificate  of  Service. 

SEC.  85.     The  following  is  a  form  of  constable's  certifi 
cate  of  service  to  be  indorsed  on  the  foregoing  order  : 

I  hereby  certify  that  I  have  served  the  within  order,  by  delivering  a  true 

copy  thereof  to ,  the  defendant  therein  named,  personally,  this  .... 

day  of  . . . .,  A.D  18. .,  at  ....  township,  county  of  .... 


Fees,  $ Constable. 

Form  of  Order  of  Examination  of  Debtor  of  Defendant. 

SEC.  86.     The  following  is  a  form  of  the  order  of  exam 
ination  of  debtor  of  defendant : 

In  the  justice's  court  of  ....  township,  in  the  county  of  . . . . ,  state  of 


plaintiff, 
against 


defendant. 

The  people  of  the  state  of , 

Td ,  greeting  : 

Whereas,  it  has  been  alleged  and  made  to  appear  to  the  undersigned,  one 
of  the  justices  of  the  peace  of  said  township,  that  an  attachment  has  been 
duly  issued  out  of  this  court  against  the  property  of  the  defendant  in  the 
above-entitled  action  and  is  still  in  force,  and  that  you  Have  in  your  posses 
sion  or  under  your  control  certain  debts,  moneys,  effects,  credits  and  other 
property,  owing  to  or  belonging  to  the  said  defendant : 

You  are  therefore  commanded  to  be  and  appear  before  me,  at  my  office  in 
said  township  in  said  ....  county,  on  the  ....  day  of  . . . . ,  A.D.  18 . . ,  at  .... 
o'clock  .....  then  and  there  to  be  examined  on  oath  concerning  the  same  ; 
and  you  are  further  commanded  not  to  pay,  transfer,  return  or  otherwise 
depart  with  or  dispose  of,  any  such  debts,  moneys,  effects,  credits  or  other 
property,  until  duly  released  according  to  law. 

Given  under  my  hand,  this  ....  day  of  . . . . ,  A.D.  18 . . 


A  justice  of  the  peace  of  said  township. 

Form  of  Constable's  Certificate  of  Service. 

SEC.  87.     The  following  is  a  form  of  constable's  certifi 
cate  of  service  to  be  indorsed  on  foregoing  order  : 


ATTACHMENT.  283 

I  hereby  certify  that  I  have  served  the  within  order,  by  delivering  a  true 
copy  thereof  to ,  the  person  to  whom  the  same  is  directed,  person 
ally,  this day  of ,  A.D.  18 . . ,  at township,  in  the  county  of  .... 


Fees,  $ Constable. 

Inventory  cf  Property  Attached. 

SEC.  88.  The  sheriff  or  constable  shall  make  a  full  in 
ventory  of  the  property  attached,  and  return  the  same  with 
the  writ.  To  enable  him  to  make  such  return  as  to  debts 
and  credits  attached,  he  shall  request,  at  the  time  of  serv 
ice,  the  party  owing  the  debt  or  having  the  credit,  to  give 
him  a  memorandum  stating  the  amount  and  description  of 
each;  and  if  such  memorandum  be  refused,  he  shall  return 
the  fact  of  refusal  with  the  writ.  The  party  refusing  to  give 
the  memorandum  may  be  required  to  pay  the  costs  of  any 
proceedings  taken  for  the  purpose  of  obtaining  informa 
tion  respecting  the  amounts  and  description  of  such  debt  or 
credit.  Pr.  Act,  129;  Gen.  Laws,  5069,  5486. 

Constable's  Return  of  Writ. 

SEC.  89.  The  sheriff  or  constable  shall  return  the  writ  of 
attachment  with  the  summons,  if  issued  at  the  same  time; 
otherwise,  within  twenty  days  after  its  receipt,  with  a  cer 
tificate  of  his  proceedings  indorsed  thereon  or  attached 
thereto.  The  provisions  of  this  chapter  shall  not  apply  to 
any  suits  already  commenced,  but  so  far  as  such  suits  may 
be  concerned,  the  act  entitled  an  act  to  regulate  proceed 
ings  against  debtors  by  attachment,  passed  April  twenty- 
second,  eighteen  hundred  and  fifty,  shall  be  deemed  in  full 
force  and  effect.  Gen.  Laws,  5081,  5486. 

SEC.  90.  A  mistake  in  the  date  of  the  sheriff's  return 
may  be  corrected  at  any  time.  Such  lien  cannot  be  divested 
by  the  failure  of  the  sheriff  to  make  a  proper  return  of  the 
writ.  Nor  is  it  necessary,  when  the  levy  is  made  by  post 
ing  a  copy  of  the  writ  on  the  premises,  that  the  return  of 
the  sheriff  should  show  that  the  premises  were  at  the  time 
unoccupied.  Our  statute  prescribes  the  manner  in  which 
real  estate  may  be  attached,  but  contains  no  express  pro 
vision  requiring  that  all  the  acts  necessary  to  a  valid  levy 
shall  be  set  out  in  the  return;  nor  can  such  a  rule  be  sus 
tained.  11  Cal.  238. 


284  JUSTICES'  TKEATISE. 

Form  of  Return  of  Writ  of  Attachment. 

SEC.  91.  The  following  is  a  form  of  return  of  writ  of 
attachment : 

I  do  hereby  certify,  that  by  virtue  of  the  annexed  writ  of  attachment,  I 
duly  attached  real  property  belonging  to  the  defendant  named  in  said  writ, 
of  which  the  following  is  a  description,  viz  [here  describe  the  land  attached]: 
by  serving  upon  said  defendant,  personally  [or,  if  there  be  two  or  more  de 
fendants,  say:  "by  serving  upon  each  of  said  defendants,  respectively,  per 
sonally  "]  in  the  county  of  . . . . ,  a  copy  of  said  writ,  on  the  ....  day  of  . . .  . , 
18 . . ,  at  the  hour  of o'clock of  that  day. 

I  further  certify,  that  I  did,  on  the  same  day  [or,  "  on  the day  of 

18. . "]  file  in  the  office  of  the  recorder  for  said  county  of  . . . .,  a  copy  of  said 
writ  of  attachment,  together  with  a  description  of  the  property  attached. 


Constable  ....  township. 

SEC.  92.  If  a  defendant  cannot  be  found,  but  an  occu 
pant  is  found  upon  the  land  or  other  real  property,  the  fol 
lowing  form  is  sufficient  : 

I  do  hereby  certify,  that  by  virtue  of  the  annexed  writ  of  attachment,  I 
duly  attached  real  property  belonging  to  the  defendant  named  in  said  writ, 
of  which  the  following  is  a  description  [here  describe  the  property];  that 
said  defendant  could  not  be  found,  and  I  did  not  make  personal  service  of 
said  writ  upon  him,  and  that  I  did  attach  said  real  property  by  leaving  a 
copy  of  said  writ  of  attachment  with  ....  . . . . ,  whom  I  found  in  the  occupa 
tion  of  said  real  property,  on  the  ....  day  of  . . . .,  A.D.  18. .,  at  the  hour  of 
....  o'clock  ....  of  that  day. 

I  further  certify,  that  I  did,  on  the day  of ,  A.D.  18 . . ,  file  in  the 

office  of  the  recorder  in  and  for  said  county  of ,  a  copy  of  said  writ  of 

attachment,  together  with  a  description  of  the  property  attached. 


[Date.]  Constable  ....  township. 

SEC.  93.  If  the  defendant  cannot  be  found,  and  if  there 
be  no  occupant  of  the  real  property  attached,  the  statute 
(Pr.  Ad,  Sec.  127)  directs  that  the  property  shall  be  attached 
by  posting  a  copy  [of  the  writ  of  attachment]  in  a  conspicu 
ous  place  on  the  said  property,  and  filing  a  copy  with  a 
description  of  the-  property  attached,  with  the  recorder  of 
the  county.  In  such  case  the  return  of  the  officer  should 
be  as  follows  : 

I  hereby  certify,  that  by  virtue  of  the  annexed  writ  of  attachment,  I  duly 
attached  real  property  belonging  to  the  defendant  named  in  said  writ,  on  the 

. '. . .  day  of ,  A.D.  18. .,  at  the  hour  of o'clock, of  that  day,  of 

which  the  following  is  a  description  [here  describe  the  property]:  that  said 
defendant  could  not  be  found  and  there  was  no  occupant  upon  the  property, 


ATTACHMENT.  285 

and  I  attached  the  same  by  posting  a  copy  of  said  writ  [describe  the  place 
or  thing,  on  which  you  posted  it],  it  being  a  conspicuous  place  on  said 
property. 
And  I  further  certify,  that  I  did,  on  the  ....  day  of  . . . .,  £.D.  18. .,  file  in 

the  office  of  the  recorder  for  the  said  county  of ,  a  copy  of  said  writ  of 

attachment,  together  with  a  description  of  the  property  attached. 


[Date.]  Constable  ....  township. 

SEC.  94.  If  the  writ  of  attachment  be  levied  on  personal 
property,  the  following  form  of  return  is  sufficient : 

I  do  hereby  certify  that  by  virtue  of  the  within  writ  of  attachment,  I  did, 
on  the  ....  day  of  .  . . . ,  A.D.  18 . . ,  at  the  hour  of  ....  o'clock  ....  of  that 
day,  duly  attach  the  following  personal  property,  belonging  to  the  defendant 
named  in  said  writ,  by  taking  the  said  property  into  my  custody  and  by 
serving  on  said  defendant  personally  a  copy  of  said  writ,  in  the  county  of 
....  The  following  is  a  description  of  the  property  by  me  attached  [here 
give  an  inventory  of  the  property]. 


[Date.]  Constable  ....  township. 

SEC.  95.  If  the  property  levied  on  be  both  real  and  per 
sonal,  a  certificate  embracing  the  first  and  last  preceding 
forms  will  be  sufficient. 

SEC.  96.  If  the  constable  is  required  by  the  writ  to  levy 
on  property  in  the  possession  of  third  persons,  but  belong 
ing  to  the  defendant,  the  form  of  return  may  be  as  follows : 

I  do  hereby  certify,  that  by  virtue  of  the  annexed  writ  I  duly  attached  all 
moneys,  goods,  credits,  effects,  debts  due  or  owing,  and  all  other  personal 
property  belonging  to  the  defendant  therein  named  [or,  if  there  be  more  than 
one,  "  to  the  defendants  therein  named,"  or,  "to  either  of  them"]  in  the 
possession  or  under  the  control  of  the  party  [or,  "parties"]  hereinafter 
named,  by  serving  upon  him  personally  [or,  "  upon  each  of  thein  respectively, 
personally  "],  in  the  county  of  . . . .,  at  the  time  set  opposite  his  name  [or, 
"at  the  times  set  opposite  their  respective  names"],  a  copy  of  said  writ, 
with  a  notice  in  writing,  that  such  property  was  attached  in  pursuance  of 
said  writ,  and  not  to  pay  over  or  transfer  the  said  property  to  any  one  but 
myself. 

[Statements  demanded.     Answers  as  hereinafter  mentioned.] 

Names.  Time  of  Service.  Answers. 

18 ..        I  have gold  watches, 

....    bay  horses,  and 
hundred  dollars. 


[Dato.]  Constable  ....  township. 

[In  either  case,  the  return  should  be  attached  to  the  writ,  which  avoids 
the  necessity  of  formally  entitling  the  case  in  which  the  attachment  issued, 
at  the  commencement  of  it.] 


286  JUSTICES'  TREATISE. 

Duty  of  Constable  with  Respect  to  Property  Attached. 

SEC.  97.  If  any  of  the  property  attached  be  perishable, 
the  sheriff  or  constable  shall  sell  the  same  in  the  manner 
in  which  such  property  is  sold  on  execution.  The  proceeds 
and  other  property  attached  by  him  shall  be  retained  by 
him  to  answer  any  judgment  that  may  be  recovered  in  the 
action,  unless  sooner  subjected  to  execution  upon  another 
judgment  recovered  previous  to  the  issuing  of  the  attach 
ment.  Debts  and  credits  attached  may  be  collected  by 
him  if  the  same  can  be  done  without  suit.  The  constable's 
receipt  shall  be  a  sufficient  discharge  for  the  amount  paid. 
Pr.  Act,  130;  Gen.  Laws,  5070,  5486. 

SEC.  98.  If  judgment  be  recovered  by  the  plaintiff,  the 
sheriff  or  constable  shall  satisfy  the  same  out  of  the  prop 
erty  attached  by  him  which  has  not  been  delivered  to  the 
defendant  or  a  claimant  as  hereinbefore  provided,  or  sub 
jected  to  execution  on  another  judgment  recovered  previous 
to  the  issuing  of  the  attachment,  if  it  be  sufficient  for  that 
purpose  : 

1st.  By  paying  to  the  plaintiff  the  proceeds  of  all  sales 
of  perishable  property  sold  by  him,  or  of  any  debts  or 
credits  collected  by  him,  or  so  much  as  shall  be  necessary 
to  satisfy  the  judgment. 

2d.  If  any  balance  remain  due  and  an  execution  shall 
have  been  issued  on  the  judgment,  he  shall  sell  under  the 
execution  so  much  of  the  property,  real  or  personal,  as  may 
be  necessary  to  satisfy  the  balance,  if  enough  for  that  pur 
pose  remain  in  his  hands.  Notices  of  the  sales  shall  be 
given  and  the  sales  conducted  as  in  other  cases  of  sales  on 
execution.  Pr.  Act,  132  ;  Gen.  Laws,  5072,  5486. 

SEC.  99.  The  judgment  in  an  attachment  suit  need  not 
direct  the  sale  of  the  property  attached,  as  the  law  makes 
it  the  duty  of  the  sheriff  to  sell  it.  9  Cal.  538. 

SEC.  100.  Where  a  party,  by  the  mistake  of  his  attor 
ney,  took  judgment  on  his  attachment  for  too  much,  and 
within  thirty  days  after  flie  issuing  of  the  execution  went 
to  the  defendant  and  offered  to  correct  the  error,  it  was 
held  that  this  mistake  did  not  avoid  the  debt  or  WTit. 
Overruling  7  Cal.  355.  13  Cal.  442. 


ATTACHMENT.  287 

SEC.  101.  The  application  of  an  attaching  creditor  to 
compel  the  sheriff  or  constable  to  pay  over  the  proceeds  of 
goods  attached,  there  being  conflicting  claims  between  sev 
eral  attaching  creditors,  may  be  made  by  motion.  If  no 
tice  of  the  motion  is  not  given  by  the  party, moving,  to  the 
other  attaching  creditors,  it  is  the  duty  of  the  sheriff  or 
constable  to  do  so  if  he  wishes  the  decision  to  bind  them. 
8  Col.  570. 

SEC.  102.  If  after  selling  all  the  property  attached  by  him 
remaining  in  his  hands,  and  applying  the  proceeds,  together 
with  the  proceeds  of  any  debts  or  credits  collected  by  him, 
deducting  his  fees,  to  the  payment  of  the  judgment,  any  bal 
ance  shall  remain  due,  the  sheriff  or  constable  shall  proceed 
to  collect  such  balance  as  upon  an  execution  in  other  cases. 
Whenever  the  judgment  shall  have  been  paid,  the  sheriff  or 
constable  upon  reasonable  demand  shall  deliver  over  to  the 
defendant  the  attached  property  remaining  in  his  hands 
and  any  proceeds  of  the  property  attached  unapplied  on 
the  judgment.  Gen.  Laws,  5073,  5486. 

Claims  by  Third  Persons. 

SEC.  103.  If  any  personal  property  attached  be  claimed 
by  a  third  person  as  his  property,  the  sheriff  or  constable 
may  summon  a  jury  of  six  men  to  try  the  validity  of  such 
claim;  and  such  proceeding  shall  be  had  thereon,  with  the 
like  effect,  as  in  case  of  a  claim  after  levy  upon  execution. 
Pr.  Act,  131;  Gen.  Laws,  5071,  5486. 

SEC.  104.  The  owner  of  property  attached  or  levied  upon 
as  the  property  of  another,  is  not  conclusively  estopped 
from  showing  title  in  himself  because  he  has  given  an  ac 
countable  receipt  for  its  delivery  to  the  officer,  although 
the  receipt  admits  that  the  property  is  attached  or  levied 
upon  as  the  property  of  the  debtor,  if  he  makes  known  to 
the  officer  his  claim  at  or  before  the  time  the  receipt  is 
given.  But  if  he  fails  to  make  his  claim  known,  and  thus 
influences  the  conduct  of  the  officer,  he  is  estopped  from 
afterwards  asserting  it :  provided,  that  the  facts  and  circum 
stances  relating  to  his  claim  were  then  known  to  him.  The 
admission  that  the  property  was  attached  or  levied  upon  as 
the  property  of  the  debtor,  and  the  promise  of  the  owner 


288  JUSTICES'  TREATISE. 

to  deliver  it  to  the  officer,  must  constitute  prima  facie  evi 
dence  of  ownership  in  the  debtor;  and,  unless  overcome  by 
proof  on  the  part  of  the  claimant,  must  be  decisive  against 
him.  To  overcome  this  prima  facie  ownership  in  the  debtor, 
the  recfiipter  must  prove  two  things :  1st.  That  he  claimed 
the  property.  2d.  That  it  was  in  fact  his  own.  10  Cal. 
Ill,  178. 

The  Indemnity  Bond. 

SEC.  105.  Where  property  attached  is  claimed  by  a  third 
person,  the  sheriff  may  protect  himself  before  a  jury  of  six 
persons,  and  if  the  verdict  be  in  favor  of  the  claimant,  he 
may  relinquish  the  levy,  unless  indemnified.  If  he  gives 
the  indemnity,  it  will  only  inure  to  the  benefit  of  the  owner 
of  the  property,  so  far  as  the  consequences  which  result 
from  his  own  acts  are  concerned.  An  indemnity  bond  to 
the  sheriff  to  retain  property  seized  under  attachment,  is  an 
instrument  necessary  to  carry  the  power  to  sue  into  effect. 
8  Cal.  227. 

SEC.  106.  Where  property  was  seized  under  two  attach 
ments,  and  the  property  was  claimed  by  a  third  party, 
whereupon  both  attaching  creditors  indemnified  the  sheriff, 
who  went  on  and  sold  it,  and  paid  the  proceeds  to  the  first 
attaching  creditor,  the  amount  not  equaling  his  judgment, 
and  afterwards  the  party  claiming  the  property  obtained 
judgment  against  the  sheriff  for  the  value  of  the  property, 
it  was  held,  that  the  recourse  must  be  had  against  the  first 
attaching  creditor,  for  whose  benefit  the  property  was  sold. 
In  such  case,  the  attaching  creditors  do  not  stand  in  the 
position  of  joint  trespassers — the  seizure  of  the  second  being 
subject  to  the  first.  The  sheriff  was  the  separate  agent  of 
both  attaching  creditors,  but  in  the  order  stated,  and  as  he 
disposed  of  the  property  to  the  benefit  of  the  first  alone,  he 
must  look  to  him  and  not  the  second  attaching  creditor.  8 
Cal.  227;  13  Cal.  521. 

SEC.  107.  So,  where  a  sheriff  seizes  goods  on  two  attach 
ments  in  behalf  of  different  plaintiffs,  and  the  property  be 
ing  claimed  by  a  third  person,  the  plaintiffs  in  the  attach 
ment  suits  execute  to  the  sheriff  separate  indemnifying 
bonds,  there  is  no  joint  liability  between  the  plaintiffs  to  the 
sheriff.  Each  bond  must  be  sued  on  as  an  independent 
obligation.  13  Cal.  521. 


ATTACHMENT.  289 

Form  of  Indemnity  Bond. 

SEC.  108.     The  following  is  a  form  of  bond  of  indemnity 
against  a  levy  : 

Know  all  men  by  these  presents  :  That  we,  ............  ,  ............  , 

............  ,  ............  ,  are  held  and  firmly  bound  unto  ............. 

sheriff  of  the  county  of  ....  and  state  of  .  .  .  .  ,  in  the  sum  of  ........  dollars, 

to  be  paid  to  the  said  ............  or  his  certain  attorney,  executors,  admin 

istrators  or  assigns,  for  which  payment  well  and  truly  to  be  made  we  bind 
ourselves,  our  heirs,  executors  and  administrators,  jointly  and  severally, 
firmly  by  these  presents.     Sealed  with  our  seals  and  dated  the  ____  day  of 

.  .  .  .  ,  in  the  year  one  thousand  eight  hundred  and  seventy  ..... 

Whereas,  ...........  has  issued  an  execution  on  a  judgment  in  the  .... 

court  in  his  favor,  against  ............  ,  for  ........  dollars  to  the  said 

............  as  sheriff  of  ....  county. 

Now,  therefore,  the  condition  of  the  above  obligation  -is  such,  that  if  the 
above  bounden  ........  shall  well  and  truly  keep  and  save  harmless  and  in 

demnify  the  said  ----    ----  ,  sheriff  as  aforesaid,  and  all  and  every  person 

and  persons  aiding  and  assisting  him  in  the  premises,  of  and  from  all  harm, 
loss,  trouble,  damages,  costs,  suits  and  actions,  judgments  and  executions, 
that  shall  or  may  at  any  time  arise,  come  or  be  brought,  against  him,  them 
or  any  of  them,  as  well  for  the  levying  and  making  sale  under  and  by  virtue 
of  such  process,  of  any  of  said  goods,  as  for  entering  any  shops,  stores, 
dwelling  or  other  houses  or  buildings,  for  the  purpose  of  taking  said  goods 
and  chattels  ;  and  shall  pay  off,  cancel  and  discharge,  any  judgment,  claim  or 
demand,  that  may  be  recovered,  arise  or  be  made,  against  the  said  ...... 

......  ,  as  such  sheriff,  or  of  the  said  persons  so  aiding  or  assisting  or  either 

of  them,  then  this  obligation  to  be  void,  otherwise  to  remain  in  full  force. 


[L.S.] 
[L.B.] 


[To  be  signed,  and  justification  and  certificate  of  acknowledgment,  as  in 
SUBETIES,  Sec.  11.] 

Discharge  of  Attachment  after  Levy. 

SEC.  109.  Whenever  the  defendant  shall  have  appeared 
in  the  action,  he  may,  upon  reasonable  notice  to  the  plaint 
iff,  apply  to  the  justice  in  whose  court  the  action  is  pending 
or  to  a  county  judge,  for  an  order  to  discharge  the  attach 
ment  wholly  or  in  part,  and  upon  the  execution  of  the  un 
dertaking  mentioned  in  the  next  section,  such  order  may  be 
granted,  releasing  from  the  operation  of  the  attachment  any 
or  all  of  the  property  attached,  and  all  of  the  property  so 
released  and  all  of  the  proceeds  of  the  sales  thereof  [shall] 
be  delivered  to  the  defendant,  upon  the  justification  of  the 
37 


290  JUSTICES'  TREATISE. 

sureties  on  the  undertaking,  if  required  by  the  plaintiff. 
Gen.  Laws,  5076,  5486. 

Undertaking  en  such  Discharge. 

SEC.  110.  Before  the  granting  such  order  the  justice 
shall  require  an  undertaking  on  behalf  of  the  defendant,  by 
at  least  two  sureties,  residents  and  freeholders  or  house 
holders  in  the  county,  to  the  effect  that  in  case  the  plaintiff 
recover  judgment  in  the  action  defendant  will,  on  demand, 
re-deliver  such  attached  property  so  released  to  the  proper 
officer,  to  be  applied  to  the  payment  of  the  judgment,  and 
that  in  default  thereof  the  defendant  and  sureties  will,  on 
demand,  pay  to  the  plaintiff  the  full  value  of  the  property 
released.  The  justice  granting  such  release  may  fix  the 
sum  for  which  the  undertaking  shall  be  executed,  and  if 
necessary  in  fixing  such  sum  to  know  the  value  of  the 
property  released,  the  same  may  be  appraised  by  three 
disinterested  persons  to  be  appointed  for  that  purpose. 
The  sureties  may  be  required  to  justify  before  the  justice, 
and  the  property  attached  shall  not  be  released  from  the 
attachment  without  their  justification,  if  the  same  be  re 
quired.  Gen.  Laws,  5077,  5486. 

SEC.  111.  If  the  execution  be  returned  unsatisfied,  in 
whole  or  in  part,  the  plaintiff  may  prosecute  any  under 
taking  given  pursuant  to  section  five  hundred  and  fifty-four 
or  section  one  hundred  and  thirty-seven,  or  he  may  proceed 
as  in  other  cases  upon  the  return  of  an  execution.  Gen. 
Laws,  5074,  5486. 

SEC.  112.  Where  the  sheriff  under  a  writ  of  attachment 
in  a  suit  of  plaintiff  against  D.  M.  E.  and  P.  M.  E.,  as  the 
firm  of  D.  M.  E.  &  Co.,  was  about  to  levy  upon  the  prop 
erty  of  said  firm,  and  a  bond  was  executed  by  L.  and  J.  as 
sureties,  conditioned  to  keep  harmless  and  indemnify  the 
sheriff  against  all  damages,  costs,  charges,  trouble  and  ex 
pense,  he  may  be  put  to  by  reason  of  the  non-seizure  of  the 
property,  and  also  ' '  to  pay  whatever  judgment  may  be  ren 
dered  against  said  defendants,"  and  judgment  was  obtained 
against  one  only  of  the  defendants — plaintiff  failing  on  the 
trial  to  prove  the  other  to  be  a  partner— it  was  held,  that 
the  sureties  are  liable  on  the  bond  for  the  amount  of  the 


ATTACHMENT.  291 

judgment ;  that  tlie  bond,  though  not  strictly  an  undertak 
ing  under  the  statute,  conformed  substantially  to  it*  re 
quirements,  and  must  be  read  by  the  light  of  the  statute 
and  interpreted  according  to  the  intention  of  the  parties. 
Such  bond  will  be  presumed  to  have  been  executed  with 
reference  to  the  provisions  of  the  statute,  and  as  the  secu 
rity  required  by  the  statute  is  a  security  for  the  satisfaction 
of  any  judgment  that  may  be  obtained,  the  bond  will  be 
held  to  be  such  a  security.  This  is  the  sense  of  the  instru 
ment,  and  the  fact  that  judgment  was  obtained  against  one 
only  of  the  defendants  satisfies  the  condition  ' '  to  pay  what 
ever  judgment  may  be  rendered  against  said  defendants." 
17  Cal.  433,  434. 

SEC.  113.  If  the  defendant  obtains  an  order  for  the  re 
lease  of  property  attached  in  the  action  by  delivering  to  the 
court  or  judge  an  undertaking,  executed  by  sureties,  condi 
tioned  to  pay  the  plaintiff  any  judgment  he  may  recover 
in  the  action,  the  property  is  thereupon  released.  "When 
ever  the  liability  of  the  sureties  is  fixed  by  the  rendition 
of  a  judgment  in  favor  of  the  plaintiffs  the  sureties  have  a 
right  to  tender  the  plaintiff  the  full  amount  of  the  judg 
ment,  and  if  he  refuses  to  receive  the  same  the  sureties  are 
discharged  from  their  obligation  on  the  undertaking.  26 
Cal.  535. 

SEC.  114.  In,  the  case  of  McWdlan  vs.  Dana,  the  plaintiff 
brought  suit  upon  this  undertaking : 

"  Robert  McMillan  vs.  Garret  N.  Fischer — 

"  Wllfereas,  the  above-named  plaintiff  has  commenced  an 
action  in  the  aforesaid  court  against  the  above-named 
defendant  for  the  recovery  of  six  thousand  four  hundred 
dollars,  and  whereas  an  attachment  was  duly  issued  and 
served,  as  Avill  more  fully  appear  by  the  sheriff's  return  on 
the  process  in  said  case : 

"  Now,  therefore,  we  the  undersigned  residents  of  the 
city  and  county  of  San  Francisco,  in  consideration  of  the 
premises,  and  in  consideration  of  the  release  from  attach 
ment  of  the  property  attached  as  above-mentioned,  do 
hereby  jointly  and  severally  undertake  in  the  sum  of  twelve 
thousand  and  eight  hundred  dollars,  and  promise  to  the 
effect  that  if  the  plaintiff  shall  recover  judgment  in  such 


292  JUSTICES'  TREATISE. 

action,  we  will  pay  to  the  plaintiff,  upon  demand,  the 
amount  of  such  judgment,  together  with  the  costs,  not 
exceeding  in  all  the  said  sum  of  twelve  thousand  eight 
hundred  dollars. 

"Dated  at  San  Francisco  this  8th  day  of  December,  1857. 
"[Signed]  WM.  A.  DANA, 

"IiiAP.  BANKIN." 

The  complaint  averred  that  after  the  execution  and  ap 
proval  by  the  court  of  this  paper,  and  in  consequence  and 
consideration  of  such  undertaking,  the  said  property  and 
moneys  so  attached  were  released  from  said  attachment, 
"  as  by  the  order  of  said  court,  made  by  the  judge  thereof, 
and  filed  in  said  court."  The  order  of  the  court  was  set 
out  which  released  and  discharged  the  property  attached 
from  the  attachment.  The  court  on  the  trial  granted  a 
nonsuit,  upon  the  ground  that  there  was  no  averment  in  the 
complaint  that  the  property  attached  was  actually  released. 
The  supreme  court  say:  The  undertaking  has  the  same 
effect  and  is  to  be  construed  in  the  same  way  as  if  it  were 
a  bond  making  the  same  recitals.  The  mere  fact  that  the 
statute  does  not  require  a  seal  to  the  paper  evidencing  the 
obligation  in  this  class  of  instruments,  does  not  require  us 
to  give  them  a  different  character  or  construction  from 
those  executed  under  the  old  practice,  which  were  techni 
cally  writings  obligatory.  The  recitals  are  conclusive  of 
the  facts  stated.  They  show  a  consideration  for  the  prom 
ise,  and  the  obligation  of  the  parties  upon  that  considera 
tion.  In  the  present  instance,  the  defendants  promise,  in 
consideration  of  the  release  of  the  property  from  the  attach 
ment,  that  in  the  event  of  a  recovery  of  the  judgment  by 
the  plaintiff,  they  will  pay  the  amount  of  the  judgment. 
The  complaint  avers  that  this  property  was  released  by 
order  of  the  judge,  and  the  order  of  release  is  set  out.  The 
object  of  giving  the  undertaking  was  to  procure  this  release, 
and  this  release  was  had  in  consequence  of  the  undertaking; 
and  the  consideration  of  the  undertaking  therefore  is  the 
release  so  procured.  In  consideration  of  this  release^  the 
obligors  agree  to  pay  the  judgment.  Whether  the  property 
was  redelivered  to  Yischer  or  not,  was  wholly  immaterial. 
The  plaintiff  in  attachment,  after  the  giving  of  the  under- 


ATTACHMENT.  293 

taking  and  the  order  of  the  judge,  had  no  further  claim  on 
it.  Nor  does  it  matter  whether  the  property  was  subject  to 
attachment  or  not.  That  matter  cannot  be  tried  in  this  col 
lateral  way.  It  is  enough  that  the  plaintiff  had  this  prop 
erty  levied  on  as  subject  to  his  debt,  and  that  these  sureties 
procured  its  release  upon  the  stipulation  that,  in  considera 
tion  of  such  release,  they  would  pay  the  amount  of  the 
judgment  to  be  recovered  by  the  plaintiff  in  the  attachment 
suit.  Nor  was  any  proof  necessary  of  the  preliminary  pro 
ceedings  connected  with  or  preceding  the  levy,  for  these 
defendants  admit  the  levy  of  the  attachment  on  this  prop 
erty,  and  this  is  enough. 

On  petition  for  a  rehearing,  the  supreme  court  say: 
1st.  The  expressions  of  the  opinion  are  to  be  limited  to 
the  case  before  the  court.  When  we  spoke  of  the  effect  of 
an  undertaking  as  similar  to  that  of  a  bond,  we  spoke,  of 
course,  of  an  undertaking  taken  in  pursuance  of  the  statute 
— for  it  was  of  a  statutory  undertaking  that  the  observa 
tions  were  made.  The  record  presented  the  question  upon 
the  complaint,  which  averred  that  the  undertaking  was 
made  after  an  attachment,  upon  the  order  of  the  judge. 

Whether  a  mere  formal  variation  from  the  regular  stat 
utory  course  would  make  any  difference  in  the  rule,  it  is 
not  necessary  to  determine,  for  no  point  was  made  or  fact 
alleged  as  to  such  variation. 

2d.  We  think  that  it  does  not  rest  with  the  defendant  to 
say  that  the  property  attached,  if  any  wras,  was  not  subject 
to  levy,  for  the  condition  is  to  answer  the  judgment ;  and 
no  collateral  inquiry  can  be  made  as  to  the  fact  of  the  levy 
or  the  property  being  subject  to  it.  This  has  been  often 
decided  in  the  case  of  forthcoming  bonds  in  several  states 
of  the  union.  It  is  not  uncommon  in  Kentucky,  Virginia 
and  Alabama,  to  give  bonds  for  the  delivery  of  property 
merely  fictitious  in  order  to  stop  the  execution  of  &fi.  fa.; 
but  it  has  been  held  that  the  parties  executing  the  bond 
were  estopped  to  deny  that  the  property  was  levied  on  and 
subject  to  levy.  The  condition  here  is,  that  the  obligors 
will  pay  the  judgment  in  consideration  of  the  discharge  of 
the  attachment;  and  if  the  undertaking  be  regular  it  is  not 
at  all  important  whether  the  property  be  leviable  or  not, 


294  JUSTICES'  TREATISE. 

for  by  the  contract  the  parties  have  bound  themselves  to 
pay  in  an  event  independent  of  all  considerations  of  this 
sort. 

3d.  What  we  said  in  reference  to  the  conclusive  effect  of 
the  recitals,  was  upon  the  hypothesis  that  this  was  a  stat 
utory  undertaking;  and  to  that  opinion  we  adhere.  The 
question  fairly  arose  upon  the  pleadings,  and  our  judgment 
upon  that  matter  remains  unaltered.  18  Cal.  346-349. 

Form  of  Undertaking  on  such  Discharge. 

SEC.  115.  For  form  of  undertaking  on  such  discharge, 
see  section  thirty -five. 

Discharge  of  Attachment  for  being  Improperly  or  Irregularly  Issued. 

SEC.  116.  The  defendant  may,  also,  at  any  time  before 
the  time  for  answering  expires,  apply,  on  motion,  upon 
reasonable  notice  to  the  plaintiff,  to  the  justice  in  whose 
court  the  action  is  brought  or  to  a  county  judge,  that  the 
attachment  be  discharged,  on  the  ground  that  the  writ  was 
improperly  or  irregularly  issued.  Gen.  Laws,  5078,  5486. 

SEC. '117.  The  notice  of  motion  to  discharge  a  writ  of 
attachment,  stated  that  the  motion  would  be  made  because 
the  said  writ  was  improperly  issued  :  Held,  that  the  notice 
should  have  specified  the  grounds  of  the  motion,  and 
wherein  it  would  be  urged  that  the  writ  was  improperly 
issued.  The  notice  gave  no  information  to  the  adverse 
party  as  to  the  character  of  the  objections  which  would  be 
taken.  10  Cal.  338. 

Section  one  hundred  and  thirty-eight  does  nofr  obviate 
the  necessity  of  specifying  the  particular  points  of  irregu 
larity  upon  which  the  motion  will  be  made.  It  is  only  a 
provision  that  whenever  the  writ  is  improperly  issued,  that 
fact  will  authorize  the  application  for  its  discharge.  It  is 
like  a  great  variety  of  provisions  indicating  the  general 
ground  or  reason  upon  which  parties  may  proceed  or  the 
action  of  the  court  may  be  based,  and  which  are  never  held 
to  obviate  the  necessity  of  specifying  the  points  of  objec 
tion  upon  which  the  moving  party  will  rely.  If  the  point 
be  stated,  it  may  be  possible  for  the  opposite  party  to 


ATTORNEYS  AT  LAW.  295 

answer  it,  and  the  object  of  the  rule  is  to  give  him  a  fair 
opportunity  to  do  so.     10  Cat.  338,  339. 

SEC.  118.  If  the  motion  be  made  upon  affidavits  on  the 
part  of  the  defendant,  but  not  otherwise,  the  plaintiff  may 
oppose  the  same  by  affidavits  or  other  evidence,  in  addition 
to  those  on  which  the  attachment  was  made.  Gen.  Laws, 
5079,  5486. 

SEC.  119.  If,  upon  such  application,  it  shall  satisfactorily 
appear  that  the  writ  of  attachment  was  improperly  or  irreg 
ularly  issued,  it  shall  be  discharged.  Gen.  Laws,  5080, 
5486.  • 

Suits  against  Plaintiff  in  Attachment. 

SEC.  120.  If  a  person  having  a  good  cause  of  action 
against  another,  willfully  sue  for  a  much  greater  amount  than 
is  due,  and  attach  the  property  of  the  other,  and  put  him  to 
charges,  he  is  liable.  In  cases  of  this  nature  there  is  no 
settled  rule  as  to  the  amount  of  damages  to  be  recovered. 
The  jury  are  not  confined  to  the  actual  pecuniary  loss  sus 
tained  by  the  plaintiff,  but  may  take  into  consideration  the 
character  and  position  of  the  parties,  and  all  the  circum 
stances  attending  the  transaction.  6  Cal.  685. 

NOTE. — For  further  information,  see  EXECUTION,  Chap.  XLVIII,  and 
SHEBUTS,  Chap.  LXXXI. 


CHAPTER    XXXI. 

ATTOKNEYS    AT    LAW. 

*  \ 

SECTION  1.  The  authority  of  an  attorney  at  law  to  appear 
for  parties  for  whom  he  enters  an  appearance  in  an  action, 
will  be  presumed,  where  nothing  to  the  contrary  appears. 
21  Cal.  51. 

SEC.  2.  Attorneys  are  officers  of  the  court,  and  it  is  its 
highest  duty  to  see  that  its  own  officers  conduct  themselves 
properly.  8  'Cal.  322. 

SEC.  3.  An  attorney,  by  virtue  of  his  retainer  and  gen 
eral  control  over  a  cause  in  court,  has  the  power  to  bind  his 
client,  by  consenting  to  an  order  of  the  court;  and  in  case 


296  JUSTICES'  TREATISE. 

0 

of  such  consent  being  given  by  the  attorney,  it  cannot,  after 
the  order  has  been  made,  be  revoked  by  the  client.  -1  Cal, 
214. 

SEC.  4.  Where  a  party  changes  his  attorneys  in  an  ac 
tion,  and  there  is  no  regular  substitution  of  attorneys  as 
pointed  out  by  statute,  notices  may  be  served  on  the  attor 
ney  of  record.  6  Cal.  55. 

SEC.  5.  An  attorney  has  no  lien  upon  a  judgment  recov 
ered  in  favor  of  his  client  as  a  compensation  for  his  servi 
ces;  and  where  the  plaintiff  enters  satisfaction  of  a  judg 
ment,  the  attorney  has  no  right  to  disturb  it.  2  Gal.  509. 

SEC.  6.  An  attorney  at  law,  appointed  by  the  court  of 
sessions  to  defend  a  pauper  prisoner  arraigned  before  it 
upon  an  indictment  for  felony,  cannot  charge  the  county  for 
his  professional  services ;  the  appointment  being  made  upon 
the  expression  of  a  desire  of  the  prisoner  to  have  counsel. 
17  Cal.  61. 


PEOMISSOEY  NOTES,   BILLS  OF  EXCHANGE,    ETC. 


297 


CHAPTER    XXXII. 

PROMISSORY  NOTES,  BILLS  OF  EXCHANGE,  OK- 
DEES,  CHECKS,    DRAFTS,  CERTIFICATES  OF 


DEPOSIT. 

SECS. 

DEFINITION 1-9 

NEGOTIABLE  PAPEK — WHAT  is  ?  10-16 
Or  THE  CONSIDERATION — WHAT 

GOOD 17-18 

OF  FRAUD,  FAILURE  OB  ILLE 
GALITY  OF  CONSIDERATION  .  19-28 
NOTE  DEPOSITED  AS  COLLATERAL 

SECURITY 29-32 

WHEN  INTEREST  BEGINS  TO  RUN.        33 
WHEN  THE  RECEIPT  OF  NOTE  is 

PAYMENT  OF  A  DEBT 34-39 

ALTERATION  IN  A  NOTE 40-42 

PAYMENT  OF  NOTE 43-47 

WHEN  NOTE  OR  DRAFT  is  PAYA 
BLE  48-50 

OF  THE  PLACE  OF  PAYMENT.  . . .  51-52 
WHEN  THE  CHECK  MUST  BE  PRE 
SENTED  53 

DEMAND  UPON  THE  MAKEE.  . . .  54-61 

INDORSER,  His  CONTRACT 62-65 

INDORSER,  WHEN  CHARGED  AND 

NOT  CHARGED 66-71 

NOTICE    TO    INDORSEE,    WHEN 

TO  BE  GIVEN , . .  72-78 

NOTICE     TO     INDORSER,     How 

SERVED 79-81 

NOTICE  TO  INDORSEE,  FORM  OF.  81-87 

ACCEPTOR  OF  BILL 88-95 

PROTEST  OF  NOTARY  . .  , .  .96-101 


WAIVER  OF  PRESENTMENT  AND 

NOTICE,  How  PROVED,  AND 

EFFECT  OF 102-lOi 

DAMAGES  ON  FOREIGN  BILLS  . .  105 

GUARANTORS  1 106-113 

SUEETIES 114-116 

WHEN  SURETY  RELEASED 117 

ACTION  BY  SURETY  AGAINST 

MAKER 118 

WHOM  AND  BY  WHOM  SUIT  CAN 

BE  BROUGHT  ON  NOTE 119-127 

PAST  NOTE  OH  CHECK  OR  NEGO 
TIABLE  PAPER 128-130 

DEFENSES  BY  MAKEE  AGAINST 

ASSIGNEE 140 

EXECUTION  OF  NOTE,  How 

PROVED 141 

NOTES  AND  BILLS  EXECUTED  BY 

AGENT 142-146 

NOTES  AND  BILLS  EXECUTED  BY 

CORPORATIONS 147-148 

NOTES  AND  BILLS  EXECUTED  BY 

INFANTS 149 

NOTES  AND  BILLS  EXECUTED  BY 

PARTNEE 150-152 

NOTES  AND  BILLS  EXECUTED  BY 

TRUSTEES,  GUARDIANS.  . .  153 
NOTES  AND  BILLS  EXECUTED  BY 

WIFE 154-156 

FORMS  OF  NOTES,  ETC . .  157-166 

SECTION  1.  A  promissory  note  is  a  direct  engagement  by 
the  pay  or  to  pay  his  own  debt.  16  Cal.  153. 

SEC.  2.  An  instrument,  to  be  regarded  either  as  a  bill  of 
exchange  or  promissory  note,  must  be  payable  absolutely; 
its  payment  cannot  be  made  to  depend  upon  a  contingency. 
Therefore,  warrants  drawn  by  the  mayor  and  controller  upon 
the  treasurer  of  a  city,  upon  a  particular  fund,  upon  the  suf 
ficiency  of  which  their  payment  is  made  to  depend,  are  not 
analogous  in  legal  effect  to  bills  of  exchange  drawn  by  an 
38 


298  JUSTICES'  TREATISE. 

individual  upon  himself,  and  cannot  be  treated  as  promis 
sory  notes.  16  Cat.  286. 

SEC.  3.  The  first  and  principal  requisite  of  a  bill  of  ex 
change  is,  that  it  must  be  for  the  payment  of  money  only,  and 
for  a  named  sum  certain.  8  Cal.  104. 

SEC.  4.  The  following  written  order  possesses  all  the 
requisites  of  an  inland  bill  of  exchange : 

, ,18.., 

Mr :  Please  pay  the  bearer  of  these  lines ,  and  charge 

the  same  to  my  account.  

It  contains  a  direction  for  the  payment  of  money  by  one 
person  to  another,  absolutely  and  at  all  events.  As  no 
time  is  specified  it  is  to  be  taken  as  payable  at  sight.  No 
further  particulars  than  these  are  essential  to  constitute  a 
bill  of  exchange.  The  insertion  of  the  word  "please"  does 
not  alter  the  character  of  the  instrument.  This  is  the  usual 
term  of  civility,  and  does  not  necessarily  imply  that  a  favor 
is  asked.  12  Cal.  97. 

SEC.  5.  There  is  little  or  no  difference  between  checks, 
so  called,  and  bills  of  exchange,  except  so  far  as  that  differ 
ence  may  arise  from  the  custom  of  merchants,  or  the  statute 
regulation  of  the  particular  jurisdiction  in  which  they  are 
used.  They  are  similar  in  form  and  the  courts  have  placed 
them  upon  the  same  footing.  4  Cal.  37. 

$  .... 

SAN  FBANCTSCO,  June  9th,  1853. 

Messrs ,  bankers : 

Pay  to ,  on  the  fifteenth  instant,  or  order, thousand  dollars. 


This  instrument  has  all  the  attributes  of  a  bill  of  exchange, 
and  differs  from  an  ordinary  check,  which  is  generally  drawn 
payable  at  sight,  and  raises  the  supposition  that  the  drawer 
has  the  amount  of  money  in  the  hands  of  the  drawee,  which 
becomes  at  once  appropriated  for  its  payment.  Checks  of 
this  kind  are  sight  bills,  and,  under  our  statute,  are  not  en 
titled  to  grace ;  but  the  above  instrument,  being  an  order  to 
pay  at  a  future  day,  is  an  inland  bill  of  exchange,  and  the 
drawer  is  entitled  to  three  days'  grace  and  notice  of  non 
payment.  Therefore,  the  presentation  for  payment  and  no 
tice  of  non-payment  given  to  the  drawer,  and,  consequently, 


PROMISSORY  NOTES,    BILLS  OF  EXCHANGE,   ETC.  299 

the  commencement  of  the  action  on  the  fifteenth  of  June, 
were  premature.     4  Col.  37. 

Form  of  Certificate  of  Deposit. 

SEC.  6.     The  following  is  a  form  of  certificate  of  deposit: 
No.  .  ) 


, ,  187..) 

deposited  with  us,    hundred  and   ....   dollars, 

payable  at  our  office,  in ,  on  return  of  this  certificate,  with  her  in 
dorsement  herein. 


Certificates  of  deposit,  although  differing  in  form  from  a 
promissory  note,  yet  have  all  of  its  important  incidents. 
Each  contains  a  promise  by  one  person  to  pay  another  per 
son,  absolutely  and  unconditionally,  a  certain  sum  of  money, 
at  a  time  specified  therein.  The  rules  of  law,  in  reference 
to  all  securities,  ought  to  be  applied  according  to  the  nature 
of  the  security,  and  not  to  be  influenced  by  the  name  by 
which  the  paper  is  commonly  known.  Certificates  of  de 
posit  must,  therefore,  be,  as  far  as  negotiability  is  con 
cerned,  placed  upon  the  same  footing  as  promissory  notes, 
which  were  negotiable  at  common  law  and  have  been  ex 
pressly  made  so  by  our  statute.  4  Cal.  40. 

SEC.  7.  Bills  of  credit  signify  a  paper  medium,  intended 
to  circulate  between  individuals  and  between  government 
and  individuals,  for  the  ordinary  purposes  of  society,  and 
embrace  every  description  of  paper  which  circulates  as 
money.  7  Cal.  477. 

SEC.  8.  A  note,  written  by  a  party  beginning  "I,  A  B, 
promise  to  pay,"  has  been  held  good,  though  no  name  was 
written  under  it.  So  it  has  been  held,  that  if  a  party  re 
quest  another  in  his  presence  to  write  his  name  for  him,  it 
is  sufficient.  8  Cal.  573. 

SEC.  9.  The  legal  effect  of  a  promissory  note  is  the  same, 
with  or  without  the  words,  "value  received."  8  Cal.  291. 

Negotiable  Paper,  What  is. 

SEC.  10.  All  notes  in  writing,  made  and  signed  by  any 
person,  whereby  he  shall  promise  to  pay  to  any  other  per 
son  or  to  his  order,  or  to  the  order  of  any  other  person,  or 


300  JUSTICES'  TEEATISE. 

nnto  the  bearer,  any  sum  of  money  therein  mentioned,  shall 
be  due  and  payable  as  therein  expressed,  and  shall  have 
the  same  effect  and  be  negotiable  in  like  manner  as  inland 
bills  of  exchange,  according  to  the  custom  of  merchants. 
Every  such  note,  signed  by  the  agent  of  any  person,  under 
a  general  or  special  authority,  shall  bind  such  person,  and 
shall  have  the  same  effect  and  be  negotiable  as  above  pro 
vided.  The  word  "person"  shall  be  construed  to  extend 
to  every  corporation  capable  by  law  of  making  contracts. 
The  payees  and  indorsers  of  every  such  note  payable  to 
them  or  their  order,  and  the  holders  of  every  such  note 
payable  to  bearer,  may  maintain  actions  for  the  sums  of 
money  therein  mentioned  against  the  makers  and  indorsers 
of  the  same,  respectively,  in  like  manner  as  in  cases  of 
inland  bills  of  exchange,  and  not  otherwise.  Gen.  Laws, 
422-425. 

SEC.  11.  Such  notes,  made  payable  to  the  maker  thereof 
or  to  the  order  of  a  fictitious  person,  shall,  if  negotiated  by 
the  maker,  have  the  same  effect  and  be  of  the  same  validity 
as  against  the  maker  and  all  persons  having  knowledge  of 
the  facts  as  if  payable  to  the  bearer.  Gen.  Laws,  426. 

SEC.  12.  Notes  non-negotiable  at  common  law  are  made 
negotiable  with  us  by  positive  statute.  True,  the  persons 
to  w'hom  such  notes  are  transferred  hold  them  subject  to 
all  defenses  that  might  be  urged  in  suits  against  the  maker 
brought  by  the  payee  ;  but  that  fact  is  not  inconsistent  with 
an  absolute  ownership  of  the  securities  vested  in  the  party 
to  whom  they  may  have  been  transferred.  24  Cal.  210. 

SEC.  13.  A  warrant  drawn  by  the  auditor  of  a  county 
u^;on  the  treasurer,  although  payable  to  "A  or  bearer,"  does 
not  possess  the  quality  of  negotiable  paper  so  as  to  make  it 
transferable  by  delivery.  23  Cal.  125. 

SEC.  14.  A  judgment  is  not  a  negotiable  instrument  like 
a  bill  of  exchange  by  the  law  merchant.  18  Cal.  438. 

SEC.  15.  A  draft  or  order  by  A  on  B  to  pay  C  or  order 
tLo  balance  due  A  by  B,  is  not  a  negotiable  security,  not 
being  for  any  fixed  sum,  but  if  indorsed  by  B,  "balance 
due,  one  thousand  dollars,"  over  his  signature,  it  becomes 
a  promise  by  B  to  pay  C  or  his  order  that  sum,  and  is  nego 
tiable.  8  Cal.  101. 


PROMISSORY  NOTES,    BILLS  OF  EXCHANGE,   ETC.  301 

SEC.  16.  A  bill  of  lading  is  not  a  negotiable  instrument, 
like  a  bill  of  exchange.  In  this  country  no  instruments  are 
negotiable  but  regular  promissory  notes  and  bills  of  ex 
change.  1  Cal.  79. 

Of  the  Consideration,  What  Good. 

SEC.  17.  An  outstanding  liability  as  surety  or  indorser 
for  another,  together  with  a  contract  or  promise,  express  or 
implied,  by  such  surety  or  indorser  to  the  principal,  that 
he  will  make  the  debt  his  own  and  pay  it,  and  so  indemnify 
the  principal,  is  a  good  consideration  for  an  express  prom 
ise  to  pay  an  equal  amount  on  demand.  13  Cal.  333. 

SEC.  18.  When  an  indorser  has,  either  expressly  or  im- 
pliedly,  undertaken  to  pay  the  note  by  him  indorsed,  such 
an  undertaking  is  a  good  and  valuable  consideration  for  a 
promissory  note.  13  Cal.  334. 

Of  Fraud,  Failure  or  Illegality  of  Consideration. 

SEC.  19.  Notes  given  for  a  gaming  consideration  are 
valid  in  the  hands  of  a  bona  fide  indorsee.  2  Cal.  67. 

SEC.  20.  A  check  given  for  a  gaming  debt  is  void  in  the 
hands  of  all  persons  except  a  bo na  fide  holder,  without 
notice.  10  Cal.  523. 

SEC.  21.  With  checks,  as  with  promissory  notes,  the 
presumption  is  that  they  are  given  upon  a  valid  considera 
tion  ;  but  this  presumption  being  rebutted,  the  necessity  is 
thrown  upon  the  holder  of  proving  that  he  received  it  in 
good  faith,  without  notice  of  the  illegality  of  the  consid 
eration.  10  Cal.  526. 

SEC.  22.  Story,  in  his  work  on  equity  jurisprudence  (Sec. 
208),  says  that  if  a  vendor  sell  an  estate,  knowing  that  there 
are  incumbrances  upon  it  of  which  the  vendee  is  ignorant, 
the  suppression  of  such  a  fact  will  be  sufficient  to  avoid  the  ' 
sale  upon  the  ground  of  fraud.  This  rule  rests  upon  the 
soundest  principles  of  equity  and  justice,  and  the  courts 
have  always  been  ready  to  enforce  it  by  relieving  the  pur 
chaser  from  the  consequences  of  his  bargain.  Silence 
under  such  circumstances  amounts  to  a  fraudulent  con 
cealment,  but  the  failure  to  speak  cannot  be  regarded  as 
fraudulent  if  the  ignorance  of  the  purchaser  is  attributable 


302  JUSTICES'  TEEATISE. 

to  his  own  negligence.  It  is  not  the  policy  of  the  law  to 
encourage  laches,  and  if  the  means  of  information  are 
known  to  the  purchaser,  and  within  his  reach,  he  cannot 
afterwards  allege  his  ignorance  as  a  ground  of  fraud,  unless 
by  deceit  or  misrepresentation  lie  has  been  actually  misled. 
The  seller  has  the  right  to  act  upon  the  presumption  that 
he  had  informed  himself  of  whatever  he  considered  it  his 
interest  to  know,  and  the  courts  will  treat  the  transaction 
as  a  purchase  made  with  full  knowledge  of  the  facts,  and 
decline  to  interfere.  A  broader  and  more  comprehensive 
equity  is  frequently  administered  in  cases  of  specific  per 
formance,  but  in  such  cases  courts  of  equity  sometimes 
proceed  upon  grounds  entirely  independent  of  the  validity 
of  the  contract.  Ward  vs.  Packard  et  aL,  18  Cal.  391. 

SEC.  23.  When  at  the  time  a  note  is  made,  and  as  a  part 
of  the  same  transaction,  a  third  person  indorses  an  absolute 
guaranty  upon  the  note,  the  note  and  the  guaranty  are  but 
parts  of  the  same  instrument,  the  note  expressing  that 
which  first  applies  to  the  maker,  and  the  guaranty  express 
ing  that  which  applies  only  to  the  guarantor,  while  the  note 
and  guaranty  taken  together  make  up  the  contract  as  be 
tween  the  payee  and  the  guarantor.  It  is  competent  for  par 
ties  to  refer  to  any  writing  for  a  given  purpose,  and  writing 
for  that  purpose  becomes  a  part  of  the  instrument  signed 
by  the  party  to  be  charged ;  and  it  does  not  matter  in  what 
place  or  in  what  order  the  parties  sign  their  names,  the 
intention  must  govern.  Where  the  guaranty  is  indorsed 
upon  the  instrument  after  it  is  made,  and  therefore  consti 
tuted  no  part  of  the  original  instrument,  the  guaranty  will 
fail,  for  the  reason  that  there  is  either  no  consideration  for 
the  promise  in  fact,  or  the  new  consideration  is  not  ex 
pressed  in  the  instrument  to  which  reference  is  made.  7 
Cal.  34,  35. 

SEC.  24.  Want  or  illegality  of  consideration  may  be  in 
quired  into  in  a  suit  upon  a  bill  or  note  between  the 
original  parties,  by  the  general  mercantile  law,  but  where 
these  securities  have  passed  into  the  hands  of  third  persons 
without  notice,  the  maker  is  estopped  from  setting  up  such 
defense.  This  peculiar  system  of  credit  is  favored  by  the 
law ;  and  a  rule  requiring  the  indorsee  of  every  bill  or  note 


PROMISSORY  NOTES,   BILLS  OF  EXCHANGE,   ETC.  303 

to  inquire  into  the  consideration  would  retard  commercial 
transactions  and  shake  paper  credit  to  its  foundation.  2 
Cal.  66.  The  holder  of  a  promissory  note,  coming  fairly  by 
it,  has  nothing  to  do  with  the  original  contract  between  the 
parties.  Although  money  contracts  were  void  at  common 
law,  for  illegality,  etc.,  of  consideration,  it  is  impossible  to 
find  a  single  case  in  which  a  note  given  for  an  illegal  con 
sideration  has  been  held  void  in  the  hands  of  third  persons, 
except  by  operation  of  statute.  The  want  or  illegality  of 
consideration  of  a  note  transferred  before  due,  cannot  be 
shown  in  an  action  by  a  bona  fide  holder,  except  where  the 
note  is  declared  void  by  statute.  2  Cal.  67. 

SEC.  25.  A  failure  of  consideration  may  be  pleaded  in 
bar  of  an  action  upon  a  promissory  note,  but  to  be  available 
for  that  purpose  the  failure  must  be  total.  In  cases  of 
fraud  or  warranty,  or  where  the  consideration  is  divisible 
or  capable  of  apportionment,  a  partial  failure  may  some 
times  be  given  in  evidence  in  reduction  of  damages ;  but 
the  practice  in  this  respect  proceeds  upon  the  principle  of  a 
cross  action,  and  an  affirmative  right  of  action  must  exist  in 
favor  of  a  party  seeking  relief  in  that  form.  19  Cal.  149. 

A  partial  failure  of  consideration  is  not  a  defense  to  an 
action  on  a  promissory  note  or  bill  of  exchange ;  but  when 
properly  pleaded  it  may  be  shown  in  reduction  or  recoup 
ment  of  damages.  In  establishing  the  claim  to  a  mitigation 
of  damages,  it  is  evident  that  the  defendant  must  plead  and 
show  a  cause  of  action  against  the  plaintiff,  and  prove  his 
case  in  the  same  manner  as  if  he  had  elected  to  bring  a 
separate  action.  19  Cal.  149. 

SEC.  26.  The  possession  of  a  promissory  note,  whether 
obtained  before  or  after  maturity,  is  prima  facie  evidence  of 
ownership.  The  averment  of  a  valuable  consideration  for 
the  transfer  to  the  plaintiff  is  generally  immaterial.  The 
transfer,  with  or  without  value,  confers. upon  the  holder  the 
right  of  action;  and  a  consideration  need  not  be  proved, 
unless  a  defense  is  interposed  which  would  otherwise  pre 
clude  a  recovery.  9  Cal.  246,  247. 

An  agreement  for  the  extension  of  the  time  for  the  pay 
ment  of  the  principal  of  a  note,'  if  without  consideration,  is 
void.  It  must  confer  rights  which  the  holder  does  not 
already  possess.  9  Cal.  247. 


304  JUSTICES'  TBEATISE. 

SEC.  27.  If  any  portion  of  the  consideration  of  a  note 
be  fraudulent,  the  entire  note  is  void,  as  against  creditors. 
10  Col.  229. 

If  a  party  by  ante-dating  a  note  and  making  it  draw 
interest  from  date,  secures  to  himself  a  certain  sum  of 
money  not  justly  due  to  him  for  any  past  or  present  consid 
eration,  he  takes  that  much  from  the  other  creditors,  and 
they  are  just  as  much  injured  as  if  that  amount  had  been 
included  as  part  of  the  principal  sum  itself.  The  result  is 
the  same  though  the  mode  of  accomplishing  it  be  different. 
The  law  intended  to  defeat  a  certain  end.  It  makes  every 
bond  or  other  evidence  of  debt  given  with  intent  to  hinder, 
delay  or  defraud,  creditors,  void.  If  a  part  of  the  sum 
secured  to  be  paid  by  the  note  itself  (whether  principal  or 
interest)  is  illegal,  the  note  must  defraud  creditors  if  en 
forced,  and  is,  therefore,  void,  under  the  positive  provisions 
of  the  statute.  10  Gal.  229. 

SEC.  28.  The  consideration  for  making  or  indorsing  a 
promissory  note  may  be  gone  into  at  any  time.  6  Cat.  138. 

Notes  Deposited  as  Collateral  Security. 

SEC.  29.  If,  when  a  creditor  takes  a  bill  before  maturity 
as  collateral  security  for  an  antecedent  debt,  there  be  any 
change  in  the  legal  rights  of  the  parties  in  relation  to  such 
debt,  the  creditor  becomes  a  holder  for  value,  and  the  bill 
is  not  subject  to  the  equities  between  the  original  parties. 
14  Gal  450. 

In  this  state,  taking  such  collateral  security  changes  the 
legal  rights  of  the  parties,  as  it  operates  as  a  surrender  by 
the  creditor  of  the  right  to  attach  the  property  of  the 
debtor,  and  this  surrender  is  a  sufficient  consideration  for 
the  security.  14  Gal.  450. 

SEC.  30.  Where  a  negotiable  promissory  note,  not  yet 
due,  is  taken  bona  fide,  as  a  collateral  security  for  a  pre 
existing  debt,  it  is  not  subject  to  any  defense  existing  at 
the  date  of  the  assignment  between  the  original  parties.  8 
Gal.  266. 

If  there  be  any  new  consideration  for  the  assignment, 
then  the  assignee  is  a  holder  for  value,  and  the  maker  is 
precluded  from  resorting  to  defenses  that  he  might  make 


PROMISSOKY  NOTES,    BILLS  OF  EXCHANGE,   ETC.  305 

against  the  payee,  were  the  suit  brought  by  him.  8  Col. 
266. 

A  negotiable  promissory  note,  not  yet  due,  taken  bona 
fide  as  collateral  security  for  a  pre-existing  debt,  is  not  a 
mortgage  but  a  mere  pledge  of  the  note.  8  Cal.  267. 

SEC.  31.  Where  defendant  made  and  delivered  to  K.  & 
Co.  her  note,  to  be  used  by  them  only  as  collateral  security 
to  raise  money  or  get  credit,  and  they  so  used  it,  and  after 
wards  took  it  up  from  the  pledgees:  Held,  that  K.  &  Co. 
could  not  then  sue  on  the  note,  as  it  had  answered  its  pur 
pose  ;  and  that  plaintiff  having  taken  the  note  after  maturity 
and  upon  no  new  consideration,  took  it  subject  to  the  same 
defense.  17  Cal.  515. 

SEC.  32.  Defendant  executed  a  note  to  the  order  of  his 
brother,  E.  M.  A.,  to  be  used  by  him  for  defendant's  bene 
fit  in  the  purchase  of  goods,  and  E.,  the  payee,  deposited 
the  note  with  plaintiffs  as  collateral  security  for  his  own 
debt,  and  afterwards  paid  this  debt,  or  rather  renovated  it, 
and  substituted  other  security,  but  failed  to  take  possession 
of  the  note :  Held,  that  plaintiffs  had  no  right  to  the  note 
or  its  proceeds,  because  it  was  by  this  process  redeemed 
from  the  pledge  to  plaintiffs,  and  E.  had  then  a  right  to  its 
possession,  and  would  hold  it  as  agent  for  defendant;  and 
that  this  would  be  true  whether  the  guaranty — "Waiving 
demand  and  notice,  I  hereby  guarantee  the  payment  of  the 
within  note,  value  received.  Boston,  January  29th,  1857. 
Enoch  M.  Avery" — indorsed  on  the  note,  vested  the  legal 
title  in  plaintiffs  or  not,  or  whether  the  note  were  overdue 
or  not  at  the  date  of  such  indorsement.  18  Cal.  309. 

"When  Interest  begins  to  Run. 

SEC.   33.     Where   a  promissory  note  is  payable  three 
months  after  date,  with  interest  at  four  per  cent,  per  month, 
but  does  not  specify  the  time  when  the  interest  is  to  begin 
to  run,  the  interest  runs  from  the  date  of  the  note.     8  Cal 
149. 

When  the  Receipt  of  Note  is  Payment  of  a  Debt. 

SEC.  34.     The  acceptance  of  a  note  payable  at  a  future 
time  for  a  pre-existing  debt,  does  not  extinguish  the  debt. 
Its  only  effect  is  to  suspend  the  creditor's  right  to  recover 
39 


306  JUSTICES'  TEEATISE. 

until  the  maturity  of  the  note,  when  he  may  surrender  or 
cancel  the  note  and  proceed  on  the  original  consideration. 
8  Cal.  506. 

Taking  a  note,  either  of  the  debtor  or  a  third  person,  for 
a  pre-existing  debt,  is  no  payment,  unless  it  be  expressly 
agreed  to  take  the  note  as  payment,  and  run  the  risk  of  its 
being  paid,  or  unless  the  creditor  parts  with  the  note,  or  is 
guilty  of  some  laches  in  not  presenting  it  in  due  time.  He 
is  not  obliged  to  sue  on  it;  he  may  return  it  when  dis 
honored,  and  resort  to  his  original  demand.  It  only  post 
pones  the  time  of  payment  of  the  old  debt  until  default  is 
made  in  the  payment  of  the  note.  8  Cal.  506. 

SEC.  35.  Where  a  note  is  executed  for  the  amount  of  an 
account,  without  any  agreement  that  the  account  is  thereby 
satisfied  or  discharged,  the  only  effect  of  the  note  is  to  ex 
tend  the  time  of  payment.  Upon  failure  to  pay  at  the  ma 
turity  of  the  note  a  right  of  action  accrues  upon  the  account 
as  well  as  on  the  note.  18  Cal.  330. 

SEC.  36.  A  note  given  in  consideration  of  an  antecedent 
indebtedness  does  not,  per  se,  discharge  the  debt.  In  the 
absence  of  an  agreement  to  the  contrary,  the  only  effect  is 
to  suspend  the  remedy  until  the  maturity  of  the  note.  21 
Cal.  11. 

SEC.  37.  The  defendant,  being  indebted  to  the  plaintiff, 
drew  a  bill  of  exchange  in  his  favor  upon  a  third  perso*n  for 
a  part  of  the  amount.  The  bill  was  drawn  on  the  fifteenth 
of  October,  1861,  and  was  payable  on  the  twenty-third  of 
the  same  month,  but  has  not  been  presented  for  payment. 
The  plaintiff  sues  upon  the  original  indebtedness,  and  the 
defendant  relies  upon  the  bill  as  a  discharge  pro  tanto. 
The  receipt  of  a  note  or  bill,  on  account  of  pre-existing 
indebtedness  does  not,  per  se,  extinguish  the  debt.  It 
operates,  however,  as  a  conditional  payment ;  and  if  the 
payee  of  a  bill  so  conduct  himself  as  to  release  the  drawer 
from  liability  upon  it,  he  cannot  maintain  an  action  for  the' 
debt.  4  Cal  388.  Story  in  his  work  on  biUs  (Sec.  112), 
after  stating  the  obligation  resting  upon  the  holder  in  regard 
to  presentment,  etc.,  says  :  "A  default  in  any  of  these  re 
spects  will  discharge  the  party  in  respect  to  whom  there 
has  been  such  default,  and  who  otherwise  would  be  bound 


PROMISSOKY-  NOTES,   BILLS  OF  EXCHANGE,    ETC.  307 

to  pay  the  same,  from  all  responsibility  on  account  of  the 
non-acceptance  or  non-payment  of  the  bill,  and  will  operate 
as  a  satisfaction  of  any  debt  or  demand  for  which  it  was 
given."  The  authorities  cited  by  the  appellant  are  to  the 
effect  that  receiving  the  bill  does  not  of  itself  extinguish 
the  debt ;  which,  of  course,  is  a  very  different  question  from 
the  one  presented  here.  The  plaintiff  offers  no  excuse  for 
his  failure  to  present  the  bill,  and,  so  far  as  it  goes,  the 
defendant  is  entitled  to  the  benefit  of  it  in  discharge  of  the 
debt.  21  Cal.  388,  389. 

SEC.  38.  Taking  a  note,  either  of  the  debtor  or  of  a  third 
person,  for  a  pre-existing  debt,  is  no  payment,  unless  it  be 
expressly  agreed  to  take  the  note  as  payment,  and  to  run 
the  risk  of  its  being  paid ;  or,  unless  the  creditor  parts  with 
the  note  or  is  guilty  of  laches  in  not  presenting  it  for  pay 
ment  in  due  time,  he  is  not  obliged  to  sue  upon  it ;  he  may 
return  it  when  dishonored  and  resort  to  his  original  de 
mand.  It  only  postpones  the  time  of  payment  of  the  old 
debt  until  a  default  be  made  in  the  payment  of  the  note. 
Unless  received  by  express  agreement  as  payment,  it  does 
not  extinguish  the  debt.  It  only  operates  to  extend  until 
its  maturity  the  period  for  the  payment  of  the  debt.  Its 
acceptance  is  considered  as  accompanied  with  the  condi 
tion  of  its  payment  at  maturity.  12  Cal.  321,  322.  A  bill 
shall  never  go  in  discharge  of  a  precedent  debt,  except  it 
be  part  of  the  contract  that  it  should  be  so.  Where  the 
note  of  a  third  person  is  given  in  payment  of  a  precedent 
debt,  it  is  always  taken  under  this  condition  to  be  payment, 
if  the  money  be  paid  thereon  in  a  convenient  time.  In  an 
action  upon  a  covenant  in  a  lease  to  pay  rent,  the  defend 
ant  in  defense  to  a  part  of  the  claim,  gave  in  evidence  a 
receipt  of  the  plaintiff  of  one  hundred  dollars,  purporting 
in  terms  to  be  in  full  for  the  rent  for  two  quarters.  The 
plaintiff  was  then  permitted  to  prove  that  the  note  of  one 
C.,  payable  in  four  months,  constituted  a  portion  of  the 
money  named  in  the  receipt ;  that  C.  failed  before  the  ma 
turity  of  the  note,  and  took  the  benefit  of  the  insolvent  act, 
and  that  the  note  was  not  paid.  The  taking  of  the  note 
was  no  extinguishment  of  the  debt  due  for  the  rent,  and 
there  was  no  evidence  that  the  plaintiff  agreed  to  run  the 


308  JUSTICES'  TREATISE. 

risk  of  the  solvency  of  C.,  and  to  take  the  note  as  absolute 
payment,  except  it  be  the  inference  arising  from  the  receipt 
itself,  and  that  is  not  enough  to  establish  such  a  positive 
agreement.  12  Cal.  322,  323.  There  must  be  a  clear  and 
special  agreement  that  the  vendor  shall  take  the  paper 
absolutely  as  payment,  or  it  will  be  no  payment,  if  it  after 
ward  turn  out  to  be  of  no  value.  Thus,  where  the  plaintiff 
sued  for  goods  sold  and  delivered,  for  which  the  note  of  a 
third  person  was  taken,  and  a  receipt  in  full  given,  it  was 
loft  to  the  jury  to  determine  whether  the  plaintiff  had 
agreed  to  receive  the  note  as  payment,  and  to  run  the  risk 
of  its  being  paid.  12  Cal.  323. 

SEC.  39.  So,  where  the  cashier  of  a  bank  on  the  maturity 
of  a  note  accepted  a  check  of  a  third  person  for  part  of  the 
money  and  a  new  note  for  the  balance,  and  thereupon  de 
livered  up  the  old  note,  it  was  held  that  on  the  dishonor  of 
the  check  an  action  would  lie  upon  the  original  note  to  re 
cover  the  amount  of  the  check,  and  that  the  delivering  up 
of  the  original  note  was  not  evidence  that  the  check  and 
new  note  were  received  in  payment.  Nothing  is  to  be  con 
sidered  as  payment,  in  fact,  but  that  which  is  in  truth  such, 
unless  something  else  is  expressly  agreed  to  be  received  in 
its  place.  The  mere  promise  to  pay,  whether  by  the  orig 
inal  debtor  or  a  third  party,  cannot  of  itself  be  regarded  as 
an  effective  payment.  12  Cal.  323.  Defendants  were  in 
debted  to  plaintiff  in  the  sum  of  ten  thousand  dollars  ;  sub 
sequently  parties  had  a  settlement,  and  defendants  gave  to 
plaintiff,  in  part  payment  of  the  debt,  a  note  of  third  par 
ties  for  twenty-five  hundred  dollars,  which  was  received  by 
plaintiff  without  objection,  and  the  same  left  with  defend 
ants  for  collection.  The  note  was  not  paid  at  maturity, 
and  plaintiff  demanded  the  amount  for  which  the  note  was 
taken  in  settlement  of  the  defendants,  who  paid  twelve  hun 
dred  and  fifty  dollars  and  gave  to  plaintiff  another  note  of 
the  same  parties  for  the  balance,  payable  in  one  year  ;  and 
it  was  held,  that  in  an  action  by  plaintiff  against  the  defend 
ants  to  recover  the  balance  the  defendants  were  liable  for 
ijie  amount.  As  the  receiving  of  the  note  only  operated  to 
extend  the  time  of  payment  of  the  debt  to  the  time  the  note 
fell  due,  the  statute  of  limitations  would  commence  running 
only  from  that  time.  12  Cal.  317. 


PKOMISSOBY  NOTES,   BILLS  OF  EXCHANGED  ETC.  309 

Alteration  in  a  Note. 

SEC.  40.  An  alteration  in  a  note  which  does  not  vary  the 
meaning,  the  nature  or  subject-matter,  of  the  contract,  is 
immaterial.  "Where  in  the  body  of  a  note  one  party  signs 
as  principal  and  one  as  surety,  both  are  liable  ;  and  there 
fore  tearing  off  the  word  "surety"  cannot  be  a  material 
alteration  in  a  suit  against  the  maker  and  surety.  5  Cal. 
175. 

SEC.  41.  A  promissory  note  or  a  bill  of  exchange  will 
be  good  when  a  blank  is  left  for  the  sum,  and  that  blank 
is  filled  up  by  the  party  to  whom  it  is  given.  8  Cal.  104. 
Where  a  bill  is  executed  and  delivered  by  the  drawer,  with 
a  blank  left  for  the  sum  or  time  when  payable,  these  mat 
ters  are  not  certain,  but  the  power  to  make  them  certain  is 
given  to  the  holder.  8  Cal.  105. 

SEC.  42.  Where  a  promissory  note  was  made  bearing 
monthly  interest,  but  leaving  the  rate  of  interest  in  blank; 
if  the  rate  of  interest  is  filled  in  by  the  holder  he  cannot, 
without  some  evidence  of  agreement,  recover  more  than 
legal  interest,  though  if  he  had  passed  the  note  thus  filled 
up  to  an  innocent  purchaser  the  maker  would  be  liable. 
The  filling  up  of  the  blank  is  not  such  an  alteration  of  the 
note  as  to  vitiate  it  and  prevent  recovery ;  it  supplied  an 
omission  by  fixing  an  optional  rate  of  interest,  not  binding 
on  the  maker  without  proof  of  the  consent  of  the  maker, 
but  does  not  avoid  the  right  to  recover  the  principal  and 
legal  interest.  6  Cal.  579. 

Payment  of  Note. 

SEC.  43.  Upon  the  payment  of  a  note  or  bill,  the  maker 
or  acceptor  has  a  right  to  its  possession,  as  a  voucher  of  its 
payment.  4  Cal.  40. 

SEC.  44.  The  surrender  of  a  note  is  prima  facie  evidence 
of  its  payment.  But  where  a  note  was  delivered  to  the 
maker  long  before  it  became  due,  upon  his  giving  the 
holder  an  order  on  the  indorsers,  which  was  dishonored, 
and  thereupon  it  was  returned  to  the  holder,  it  did  not  ope 
rate  as  a  payment.  The  indorsers  were  not  injured  by  this 
transaction,  nor  were  they  subjected  to  any  new  risks.  5 
Cal.  330. 


310  JUSTICES'  TKEATISE. 

SEC.  45.  If  a  promissory  note  is  surrendered  up  by  mis 
take,  under  the  supposition  that  it  is  fully  paid,  yet  if  not 
fully  paid,  the  defendant  is  still  liable  for  the  balance  due. 
23  Col.  223. 

SEC.  46.  A  bill  of  sale  made  by  the  payee  of  a  promis 
sory  note  to  the  maker  which  bargains  and  sells,  among 
other  property,  "all  debts,  notes  and  accounts,  of  whatever 
nature  due  me,"  is  not  evidence  of  the  payment  of  the  note. 
26  Cal  288. 

SEC.  47.  This  is  an  action  upon  seven  promissory  notes 
of  which  the  plaintiff  claims  to  be  the  holder  by  assign 
ment.  Six  of  these  notes,  payable  to  different  parties,  were 
assigned  to  one  of  the  makers,  and  by  him  to  the  plaintiff. 
The  first  assignment  was  before,  and  the  second  after,  ma 
turity,  and  the  question  arises  as  to  the  effect  of  these 
assignments.  It  is  contended  that  the  first  assignment 
extinguished  the  notes,  and  that  the  subsequent  transfer 
vested  no  right  of  action  in  the  holder.  The  notes  are  pay 
able  to  order,  and,  of  course,  are  negotiable,  but  the  com 
plaint  merely  alleges  that  for  a  valuable  consideration  they 
were  assigned,  etc.  Authorities  are  cited  to  show  that  a 
transfer  of  this  character  vests  in  the  holder  such  rights 
only  as  he  would  acquire  upon  an  assignment  of  a  note  not 
negotiable.  The  point  is  made  with  reference  to  certain 
matters  relied  upon  as  counter-claims,  and  is  not  impor 
tant  if  it  be  held  that  the  notes  were  extinguished  by  the 
first  assignment.  We  are  of  opinion  that  the  transaction 
amounted  in  effect  to  payment,  and  that  the  notes  became 
functus  qfficio,  and  were  not  revived  by  the  assignment  to 
the  plaintiff.  If  the  rights  of  the  plaintiff  had  attached 
before  maturity,  and  his  position  were  that  of  an  innocent 
holder,  he  would  be  entitled  to  protection,  but  under  the 
circumstances  the  action  cannot  be  maintained.  It  is  clear 
that  the  notes  could  not  have  been  enforced  by  his  assignor, 
and  having  taken  them  with  a  knowledge  of  that  fact,  they 
are  equally  unavailable  in  his  hands.  What  his  rights  are 
in  respect  to  contribution  it  is  unnecessary  to  decide ;  the 
action  is  based  entirely  upon  the  notes,  and  respecting 
them  it  cannot  be  sustained.  It  is  possible  that  the  plaint 
iff  may  recover  upon  the  notes  as  against  the  assignor,  but 


PEOMISSOEY  NOTES,    BILLS  OF  EXCHANGE,   ETC.  311 

however  this  may  be,  the  present  judgment  is  erroneous 
and  must  be  reversed.      21  CaL  79,  80. 

When  Note  or  Draft  is  Payable. 

SEC.  48.  When  no  day  of  payment  is  specified  in  a 
promissory  note  it  is  to  be  considered  as  payable  on  de 
mand.  24  Cal  329. 

SEC.  49.  The  rule  is  well  settled,  that  a  note  payable 
generally,  not  specifying  any  time  of  payment,  with  a  pro 
vision  that  interest  shall  accrue  after  a  certain  event  at  a 
given  rate,  is  due  immediately,  and  the  mere  provision  in 
respect  to  interest  does  not  alter  the  principle.  17  CaL 
625. 

SEC.  50.  Days  of  Grace. — The  following  days,  namely: 
the  first  day  of  January,  the  fourth  day  of  July,  the  twenty- 
fifth  day  of  December,  commonly  called  Christmas  day, 
shall  for  all  purposes  whatsoever  as  regards  the  presenting 
for  payment  or  acceptance,  and  of  the  protesting  and  giving 
notice  of  the  dishonor  of  bills  of  exchange,  checks  and 
promissory  notes,  made  after  the  passage  of  this  act,  be 
treated  and  considered  as  is  the  first  day  of  the  week, 
usually  called  Sunday.  Three  days,  commonly  called  ' '  days 
of  grace,"  shall  be  allowed,  except  on  sight  bills  or  drafts; 
and  any  one  of  the  holidays  specified  in  this  act  coming 
within  the  three  days  of  grace,  shall  be  counted  as  one  of 
such  days.  All  bills  of  exchange,  checks,  promissory  notes 
or  other  negotiable  instruments,  which,  by  the  terms  there 
of,  are  payable  with  or  without  grace,  if  the  day  for  the 
payment  thereof  shall  fall  on  any  Sunday,  or  the  fourth  day 
of  July,  or  on  the  twenty-fifth  day  of  December,  called 
"Christmas  Day,"  or  on  the  first  day  of  January,  or  any 
other  day  commonly  called  "Thanksgiving  Day,"  the  same 
shall  become  due  and  payable  on  the  day  previous  to  any 
of  the  days  aforesaid.  Gen.  Laws,  441,  442. 

Of  the  Place  of  Payment 

SEC.  51.  The  non-attendance  of  the  holder  of  a  bill  of 
exchange  at  the  time  and  place  of  payment  can  produce  no 
worse  consequences  to  him  than  if  he  had  attended,  and 
the  acceptor  had  also  been  present  and  tendered  the  money, 


312  JUSTICES'  TBEATISE. 

which  the  holder  had  refused  to  accept.  Under  such  a 
state  of  facts,  what  is  the  legal  consequence?  When  a  debt 
or  duty  exists,  such  as  the  payment  of  a  sum  of  money,  a 
tender  of  the  money,  though  it  be  refused,  does  not  extin 
guish  the  debt  or  duty,  but  it  remains  obligatory  on  the 
party  owing  the  debt  or  duty.  11  Cal.  318,  319. 

SEC.  52.  The  meaning  of  the  parties  in  designating  the 
place  of  payment  in  promissory  notes,  or  in  the  body  or 
acceptance  of  bills  of  exchange,  according  to  commercial 
usage,  is  not  to  insert  a  condition  precedent,  so  that  upon 
failure  of  the  holder  to  attend  at  the  designated  place  he 
shall  forfeit  his  entire  demand.  No  such  intention  exists, 
either  with  the  maker  or  receiver  of  the  note  or  bill.  A 
note  thus  framed  or  a  bill  thus  accepted,  is  like  any  other 
contract  to  pay  at  a  designated  place.  The  undertaking  of 
the  parties  and  the  legal  effect  of  such  contracts  is  this: 
that  if  ready  at  the  time  and  place  with  the  funds,  the 
obligor  has  so  far  satisfied  the  contract  that  he  cannot  be 
responsible  for  any  future  damages,  either  as  costs  of  suit 
or  interest  for  delay,  and  that  he  is  thereby  discharged  of 
the  debt.  No  one  would  receive  an  obligation  depending 
upon  such  a  contingency  for  its  ultimate  satisfaction.  The 
insertion  of  the  place  of  payment  is  usually  made  for  the 
convenience  of  one  of  the  parties,  and  is  given  and  received 
with  that  understanding  and  none  other.  11  Cal.  327. 

When  Check  must  be  Presented. 

t 
SEC.  53.     By  the  law  merchant  it  is  sufficient  if  a  check 

drawn  upon  one  day  be  presented  for  payment  in  usual 
banking  hours  upon  the  next  succeeding  day,  where  the 
payee  resides  in  the  immediate  vicinity  of  the  place  of  pay 
ment  ;  for  instance,  in  the  same  town  or  vicinity.  In  Eng 
land,  the  payee  of  a  check  must,  at  the  farthest,  present 
the  same  for  payment  before  the  close  of  banking  hours 
upon  the  next  succeeding  day  to  the  one  upon  which  the 
check  is  drawn  and  received.  The  payee  of  a  check,  in 
presenting  it  for  payment,  in  order  to  hold  the  drawer,  is 
bound  to  exercise  reasonable  diligence.  That  reasonable 
diligence  in  the  presentation  of.  a  check  drawn  upon  a 
banker,  is  sumciently  exercised  by  the  presentation  for  pay- 


PEOMISSOKY  NOTES,   BILLS  OF  EXCHANGE,   ETC.  313 

ment  upon  the  next  day,  during  the  usual  banking  hours. 
To  constitute  a  commercial  usage,  it  must  be  general  in  the 
mercantile  community.  5  Gal.  229. 

Demand  on  the  Maker. 

SEC.  54.  The  general  rule  as  to  the  presentment  and 
demand  of  commercial  paper  having  days  of  grace,  is  this : 
the  presentment  and  demand  must  be  made  within  reasona 
ble  hours  during  the  last  day  of  grace.  For  the  purpose  of 
fixing  the  liability  of  indorsers,  the  note  or  bill  is  payable 
on  demand  at  any  time  during  those  hours.  What  are  rea 
sonable  hours  will  depend  upon  the  question,  whether  or 
not  the  note  or  bill  is  payable  at  a  place  or  bank,  where,  by 
the  established  usage  of  trade,  business  transactions  are 
limited  to  certain  hours.  If  there  are  such  stated  hours, 
where  the  note  or  bill  is  payable,  the  presentment  and  de 
mand  must  be  made  ivithin  those  hours  ;  but  if  there  are  no 
stated  hours  and  no  place  of  payment  is  designated  in  the 
note  or  bill,  the  presentment  and  demand  may  be  made 
either  at  the  place  of  business  or  residence  of  the  maker  or 
acceptor ;  if  at  his  place  of  business,  it  must  be  within  the 
usual  business  hours  of  the  city  or  town ;  if  at  his  residence, 
then  within  those  hours  when  the  maker  or  acceptor  may  be 
presumed  to  be  in  a  condition  to  attend  to  business.  Pay 
ment,  as  a  general  rule,  must  be  demanded  within  reason 
able  hours  during  the  day  of  the  maturity  of  the  note.  If 
there  is  a  known  custom  or  usage  of  trade  in  the  town  or 
city,  that  will  furnish  the  proper  rule  to  govern  the  holder, 
for  then  the  presentment  must  be  within  the  hours  limited 
by  such  custom  or  usage.  8  Cal.  631,  632. 

SEC.  55.  Where'  an  inland  bill  was  accepted,  payable  at 
a  banker's  in  London,  and  on  its  maturity  was  presented  at 
the  banker's,  after  the  usual  banking  hours  when  the  bank 
was  closed,  it  was  held  that  the  presentation  was  too  late. 
Where  a  bill  is  accepted  in  this  manner,  it  must  be  under 
stood  by  all  parties  concerned  that  it  is  to  be  presented  for 
payment  at  the  banker's  within  the  usual  hours  of  business; 
and  not  having  been  so  presented  in  this  case,  there  was  no 
evidence  of  the  dishonor  of  it  in  order  to  charge  the  drawer. 
8  Cal.  632. 

40 


314  JUSTICES'  TREATISE. 

SEC.  56.  A  presentment  of  a  bill  by  a  notary  at  a  house 
of  business  after  it  is  closed,  is  too  late.  It  must  be  made 
during  times  of  business,  at  such  reasonable  hours  as  a  man 
is  bound  to  attend,  by  analogy  to  the  horce  juridicce  of  the 
courts.  8  Col.  632. 

SEC.  57.  As  to  bankers,  a  presentment  out  of  the  hours 
of  business  is  not  sufficient;  but  in  other  cases,  the  bill 
must  be  presented  at  a  reasonable  hour.  A  presentment  at 
twelve  o'clock  at  night,  when  a  person  has  retired  to  rest, 
would  be  unreasonable ;  but  a  presentment  between  seven 
and  eight  in  the  evening  is  not  a  presentment  at  an  unrea 
sonable  time.  But  a  presentment  made  and  payment  de 
manded  at  eight  o'clock  in  the  morning  of  the  last  day  of 
grace,  were  held  to  have  been  made  at  an  unreasonable 
hour  [it  being  the  last  day  of  grace] .  A  presentment  and 
demand  made  a  few  minutes  before  twelve  at  night,  after 
the  maker  had  retired  to  rest,  were  also  held  to  have  been 
made  at  an  unreasonable  hour,  and,  therefore,  insufficient 
and  unavailing.  8  Cal.  633. 

SEC.  58.  The  demand  upon  the  maker  should  be  made 
on  the  third  day  of  grace  and  within  a  reasonable  time  be 
fore  the  expiration  of  the  day,  arid  if  he  then  refuses  pay 
ment,  the  holder  has  done  all  that  is  incumbent  upon  him 
to  do,  and  may  treat  it  as  a  dishonored  bill,  so  far  as  im 
mediately  to  'give  notice  to  the  indorser  ;  but  still,  the 
maker  has  the  whole  day  to  pay  it,  if  he  thinks  proper  to 
seek  the  holder.  8  Cal.  634,  635. 

SEC.  59.  If  a  note  be  made  payable  at  sight,  or  at  ten 
days  after  sight,  or  in  ten  days  after  notice,  or  on  request 
or  on  demand,  in  all  these  and  the  like  cases  the  note  will 
be  held  valid  as  a  promissory  note,  and  payable  at  all 
events,  although,  in  point  of  fact,  the  payee  may  die  with 
out  ever  having  presented  the  note  for  sight,  or  without 
giving  any  notice  to  or  made  any  request  or  demand  upon 
the  maker  for  payment.  But  the  law,  in  all  cases  of  this 
sort,  -deems  the  note  to  admit  a  present  debt,  to  be  due  to 
the  payee,  and  payable  absolutely  at  all  events,  whenever 
or  by  whomsoever  the  note  is  presented  for  payment,  ac 
cording  to  its  purport.  Nay,  where  a  note  is  payable  on 
demand,  no  other  demand  need  be  made,  except  by  bring- 


PKOMISSORY  NOTES,    BILLS  OF  EXCHANGE,    ETC.  315 

ing  a  suit  thereon.  So,  where  a  note  does  not  specify  any 
day  or  time  of  payment,  it  is  by  law  deemed  payable  on 
demand,  and,  therefore,  is  construed'  as  if  it  contained  the 
words,  "payable  on  demand,"  on  its  face.  12  Cal.  482. 

SEC.  60.  An  indorser  of  a  note  payable  on  demand,  no 
demand  being  made  until  thirteen  months  after  the  indorse 
ment  to  plaintiff,  is,  prima  facie,  not  liable.  The  delay  is 
unreasonable.  In  such  case,  facts  to  excuse  the  delay  are 
an  essential  part  of  the  complaint,  and,  if  not  averred  there 
in,  it  is  insufficient.  14  Cal.  457. 

SEC.  61.  "Where  a  note  is  payable  in  installments  due  at 
different  times,  and  the  demand  on  the  maker  is  not  made 
until  the  last  installment  falls  due,  and  the  demand  is  made 
for  the  whole  amount  due  on  the  note,  including  the  prior 
installments,  the  demand  is  good  for  the  purpose  of  charg 
ing  the  indorser  for  the  last  installment.  24  Cal.  380. 

Indorsee,  His  Contract. 

SEC.  62.  The  contract  of  an  indorser  is  simply  a  guar 
anty  or  declaration  that  he  will  pay  if  the  maker  does  not 
pay  upon  presentment,  if  he  receives  due  notice.  "Where 
one  writes  his  name  on  the  back  of  a  promissory  note, 
either  in  blank  or  accompanied  by  the  use  of  general  terms, 
his  undertaking  is  attended  with  all  the  liability  and  all  the 
rights  of  an  indorser  stricti  juris.  2  Cal.  488. 

SEC.  63.  An  indorser  who  sighed  his  name  under  the 
words,  "holder  on  the  within  note,"  is  entitled  to  notice  of 
demand  and  non-payment.  6  Cal.  439. 

SEC.  64.  Where  payment  by  the  maker  to  the  indorser 
of  a  promissory  note  is  relied  upon  as  an  excuse  for  want 
of  demand  and  notice,  it  must  be  a  payment  directly  and 
specifically  for  the  note,  and  not  as  security  for  all  transac 
tions  in  the  aggregate.  If  the  maker  did  not  specify  that 
the  payment  to  the  indorser  was  to  meet  the  particular 
note,  it  therefore  results  that  the  indorser  had  a  right  to 
aPPty  the  fund  to  any  indebtedness  he  held  against  the 
maker;  and  further,  to  stand  upon  his  strict  legal  rights  as 
to  demand  and  notice  in  regard  to  the  note  in  suit.  5  Cal. 
284. 

SEC.  65.      "Where  several  successive  indorsers  advance 


316  JUSTICES'  TREATISE. 

money  on  a  draft  payable  to  order,  and  it  turns  out  that 
neither  had  title,  by  reason  of  the  first  indorsement  being  a 
forgery,  each  may  recover  from  his  immediate  indorser. 
Canal  Bank  vs.  Bank  of  Albany,  1  Hill,  287.  The  same 
rule  applies  to '  certificates  of  deposit.  A  subsequent  in 
dorser  of  a  certificate  of  deposit  undertakes  that  he  pos 
sesses  a  clear  title  to  the  certificate,  derivable  from  all  the 
antecedent  indorsers.  Mills  et  al.  vs.  Barney  et  al.,  22  Cal. 
240. 

Indorsers,  -when  Charged  and  when  Not. 

SEC.  66.  As  a  general  rule,  the  holders  of  bills  are  re 
quired  to  use  the  utmost  diligence,  and  a  failure  on  their 
part  to  make  the  presentment,  and  in  case  of  non-payment 
to  give  proper  notice  to  the  drawer  or  indorser,  will  oper 
ate  to  release  them  from  their  liability  on  such  bill.  This 
notice  may  be  dispensed  with  by  express  waiver  or  by  any 
act  which  will  amount  to  a  waiver.  The  consequences 
of  a  neglect  to  present  for  payment  may  be  waived  by 
the  same  circumstances  which  excuse  the  presentment  for 
acceptance,  or  notice  of  non-acceptance  qr  non-payment 
Among  the  circumstances  which  will  excuse  notice  of  non 
payment  is  being  informed  by  the  drawer,  before  a  bill  is 
due,  that  it  will  not  be  paid  at  maturity.  7  Cal.  574,  575. 
•  SEC.  67.  Thus,  where  A  draws  a  check  in  favor  of  B, 
dated  the  first  and  payable  the  fifteenth  of  the  same  month, 
on  a  bank  wherein  he  is  paying-teller,  and  the  check  is  pre 
sented  on  the  fifteenth  by  the  agent  of  the  holder,  who  is 
informed  by  A  that  it  will  not  be  paid,  an.d  at  the  same  time 
payment  is  refused  by  A  as  teller  of  the  bank,  and  no  other 
presentment  is  made,  A  is  liable  thereon,  although  the  same 
was  not  protested  nor  any  notice  of  non-payment  given. 
The  fact  that  the  defendant,  who  was-  both  the  drawer  and, 
by  reason  of  his  situation  as  teller,  payee  of  the  bill,  in 
formed  the  plaintiff's  agent  before  the  maturity  of  the  bill 
that  it  would  not  be  paid,  is  sufficient  to  excuse  present 
ment  and  notice.  The  failure  to  present  at  a  proper  time 
being  in  consequence  of  the  act  of  defendant,  he  cannot 
take  advantage  of  his  own  wrong  to  escape  responsibility. 
7  Cal.  575. 

SEC.  68.     A  promise  to  pay  a  note  made  by  an  indorser 


PROMISSORY  NOTES,    BELLS  OF  EXCHANGE,   ETC.  317 

after  its  maturity,  where  no  demand  has  been  made  or  notice 
givqn,  and  made  with  full  knowledge  of  the  holder's  laches, 
is  binding  upon  the  indorser,  but  this  promise  must  be 
established  by  clear  ancl  distinct  evidence.  24  CaL  330. 

SEC.  69.  The  substitution  of  a  new  security  discharges 
the  indorser.  5  CaL  330. 

SEC.  70.  If  the  holder  of  a  note  take  a  fresh  security  and 
agree  to  give  time,  he  thereby  discharges  the  indorsers.  If 
there  be  no  express  agreement  for  time,  but  a  further  se 
curity  payable  at  a  future  time  is  received,  that  would,  in 
general,  imply  an  engagement  to  await  until  it  becomes 
due ;  but  by  this  is  not  meant  that  if  one  man  guarantees 
another's  note,  past  due,  to  be  paid  within  a  given  time, 
this  guaranty  implies  an  agreement  by  the  holder  with  the 
maker  of  the  note  to  wait  on  the  maker  until  the  time  lim 
ited  in  the  guaranty.  10  CaL  427. 

SEC.  71.  A  recovery  of  judgment  against  the  maker  can 
not  afiect  the  liability  of  the  indorser  ;  it  is  payment  alone 
which  can  discharge  him.  If  the  judgment  is  not  made 
upon  execution  the  indorser  may  be  sued,  and  if  he  is  com 
pelled  to  pay  the  amount,  he  has  Jiis  recourse  against  the 
maker.  The  judgment  between  the  holder  and  maker  can 
not  be  evidence  between  the  holder  and  indorser,  or,  in  a 
subsequent  suit,  between  the  indorser  and  maker.  In  a 
suit,  therefore,  against  the  maker  of  a  note  or  the  acceptor 
of  a  bill,  the  indorser  is  a  competent  witness  for  either 
party.  13  CaL  87. 

Notice  to  Indorser,  When  to  be  Given. 

SEC.  72.  The  principle  in  relation  to  negotiable  securi 
ties  is,  that  after  refusal  to  pay  on  demand,  made  on  the 
day  when  the  money  is  due  according  to  the  contract,  the 
note  or  bill  is  dishonored,  and  notice  may  be  immediately 
given  to  the  drawer  or  indorser;  though  it  is  not  necessary 
it  should  be  given  until  the  day  after,  or,  if  the  indorser  is 
in  another  town,  by  the  next  mail  after  the  day  on  which 
the  demand  is  made.  The  earliest  possible  notice  of  the 
fact  which  renders  the  indorser  liable  is  the  most  advanta 
geous  to  him,  as  the  object  of  the  notice  is  to  enable  him 
to  secure  himself.  For  the  purpose  of  fixing  the  liability 


318  JUSTICES'  TREATISE. 

of  an  indorser  or  other  party  entitled  to  notice,  the  holder 
of  a  note  must  see  that  a  due  presentment  and  demand  of 
payment  are  made  of  the  maker,  and  notice  thereof  given 
to  the  indorser;  when  this  is  done,  the  liability  of  the 
parties  becomes  fixed.  The  holder  can  then*  remain  pas 
sive.  If,  however,  the  maker  chooses  after  this  to  seek  out 
the  holder  and  pay  his  note,  he  can  do  so,  and  thus  save 
himself  from  the  liability  to  suit  on  the  following  day.  The 
rule  is,  that  for  the  purpose  of  fixing  the  liabilities  of  an 
indorser,  the  note  is  payable  on  demand  at  any  time  during 
reasonable  hours  on  the  last  day  of  grace;  but,  for  the  pur 
pose  of  sustaining  an  action,  the  holder  must  wait  until  the 
following  day,  as  the  maker  has  the  whole  day  to  make  pay 
ment.  8  Cal  634. 

SEC.  73.  Notice  may  be  given  to  the  indorser  or  other 
parties  entitled  to  notice  immediately  after  presentment  of 
the  note  or  bill  is  made  to  the  maker  and  payment  refused, 
although  it  is  not  necessary  that  such  notice  should  be  given 
until  the  following  day.  Where  a  note  was  presented  for 
payment  in  the  forenoon  of  the  day  it  became  due,  notice 
of  its  dishonor  given  to  the  defendant  in  the  afternoon  of  the 
same  day  was  held  not  to  have  been  premature.  The  note 
was  dishonored  as  soon  as  the  maker  had  refused  payment 
on  the  day  when  it  became  due,  and  the  notice  must  have 
answered  all  the  purposes  for  which  notice  in  such  cases  is 
required.  The  holder  of  a  bill  or  note  gives  notice  of  its 
dishonor  in  a  reasonable  time,  the  day  after  it  is  due;  but  he 
may  give  such  notice  as  soon  as  it  has  been  dishonored  the 
day  it  becomes  due,  and  the  other  party  cannot  complain  of 
the  extraordinary  diligence  used  to  give  him  information. 
8  Cal.  633. 

SEC.  74.  The  contract  of  the  acceptor  is  to  pay  on  de 
mand,  and  that  is  broken  if  the  bill  be  not  paid  the  instant 
it  is  presented;  from  which  it  results  that  notice  may  be 
given  the  same  day.  An  action  cannot  be  brought  till  the 
next  day. 

SEC.  75.  If  a  note  is. payable  in  bank,  notice  of  non 
payment  may  be  given  to  the  indorser  on  the  evening  of  the 
day  on  which  the  note  t  is  payable,  after  the  close  of  the 
banking  hours,  and  such  notice  will  not  be  premature, 


PROMISSORY  NOTES,    BILLS  OP  EXCHANGE,    ETC.  319 

because  the  note  is  commercially  dishonored  if  not  paid 
within  those  hours.  As  to  a  note  not  payable  in  bank, 
notice  may  be  given  on  the  evening  of  the  day  it  is  payable, 
at  the  close  of  the  usual  hours  of  commercial  business;  and 
in  places  where  there  are  no  regular  hours  of  business,  the 
notice  may  be  given  after  sunset.  4  CaL  30.  Overruled  8 
CaL  681,  which  see.  There  is  no  doubt  that  notices  may 
be  given  at  the  times  mentioned,  if  presentment  and  de 
mand  have  been  made,  but  the  inference  from  the  language 
of  the  opinion  is,  that  notices  given  at  an  earlier  period  of 
the  day  would  be  premature,  and  this  the  court  intended  to 
decide.  The  decision  (4  CaL  30)  is  in  direct  conflict  with 
the  law  as  to  presentation  and  notice.  8  CaL  631. 

SEC.  76.  A  promissory  note  was  made  before  the  act  of 
eighteen  hundred  and  fifty-one  (which  makes  the  fourth  of 
July  a  non-juridical  day),  which  fell  due  on  the  first  of  July, 
and  was  payable  on  the  fourth:  Held,  that  notice  of  non 
payment  on  the  third  was  premature,  and  ineffectual  to 
charge  the  indorser.  3  CaL  146. 

SEC.  77.  Where  a  party  signs  a  joint  and  several  promis 
sory  note,  he  is  not  entitled  to  notice  of  demand  and  non 
payment,  though  in  fact  he  signed  as  surety,  and  such  fact 
was  known  to  the  payee.  9  CaL  557. 

SEC.  78.  Where  a  draft  is  drawn  by  the  president  and 
secretary  of  a  corporation  upon  its  treasurer,  no  notice  of 
presentation  and  non-payment  is  necessary.  The  draft  is 
only  an  order  of  the  company  upon  itself — from -its  head  and 
secretary,  upon  its  treasurer,  an  officer  of  the  company.  10 

CaL  370. 

Notice,  How  Served. 

SEC.  79.  In  all  cases  where  a  notice  of  non-acceptance  of 
a  bill  of  exchange  or  non-payment  of  a  bill  of  exchange, 
promissory  note,  or  other  negotiable  instrument,  may  be 
given,  by  sending  the  same  by  mail,  it  shall  be  sufficient  if 
such  notice  be  directed  to  the  city  or  town  where  the  per 
son  sought  to  be  charged  by  such  notice  resides  at  the  time 
of  drawing,  making,  or  indorsing  such  bill  of  exchange, 
promissory  note  or  other  negotiable  instrument,  unless  such 
person,  at  the  time  of  affixing  his  signature  to  such  bill, 
note  or  negotiable  instrument,  shall,  in  addition  thereto, 


320  JUSTICES'  TREATISE. 

specify  thereon  the  post-office  to  which  he  may  require  the 
notice  to  be  addressed.     Gen.  Laws,  439. 

SEC.  80.  Notice  of  demand  and  non-payment  of  a  note 
should  be  personally  served  on  an  iridorser  residing  in  the 
same  city  where  the  note  is  held,  and  service  through  the 
postoffice  is  not  effectual  to  charge  him.  6  CaL  439. 

Form  of  Notice. 

SEC.  81.  No  precise  words  or  particular  form  is  required 
in  the  notice  to  be  given  to  the  indorser  of  a  promissory 
note  or  bill  of  exchange  of  its  dishonor.  It  is  sufficient  if 
it  appears,  or  can  reasonably  be  inferred  from  the  notice, 
that  the  note  or  bill  has  been  duly  presented  for  payment, 
and  has  been  dishonored.  A  notice  that  a  note  has  been 
duly  presented,  etc.,  and  protested  for  non-payment,  and 
that  the  holder  looked  to  the  indorser  for  payment  of  the 
same,  is  sufficient  to  put  the  indorser  upon  inquiry,  which 
is  all  the  law  requires,  and  answers  fully  the  reason  and 
purpose  of  notice.  The  word  "protested"  has  a  definite  legal 
signification.  4  CaL  214. 

SEC.  82.  As  to  notice  of  dishonor  to  be  given  or  sent  to 
the  indorser,  no  precise  form  or  words  is  necessary  to  be 
used  upon  such  occasions.  Still,  however,  it  is  indispensa 
ble  that  it  should  either  expressly,  or  by  just  and  natural 
implication,  contain,  in  substance,  the  following  requisites : 
1st.  A  true  description  of  the  note,  so  as  to  ascertain  its 
identity.  2d.  An  assertion  that  it  has  been  duly  presented 
to  the  maker  at  its  maturity  and  dishonored.  3d.  That  the 
holder  or  other  person,  giving  the  notice,  looks  to  the  per 
son  to  whom  the  notice  is  given  for  reinbursement  and  in 
demnity.  14  CaL  162. 

SEC.  83.  The  object  of  the  law  in  requiring  a  correct  de 
scription  of  the  note  to  be  given  in  the  notice  to  the  indorser 
is,  that  he  may  be  put  upon  notice  of  the  extent  of  his  lia 
bility,  and  placed  in  possession  of  the  material  facts  neces 
sary  to  enable  him  to  secure  the  liability  of  others  over  to 
him,  and  his  own  reimbursement  upon  payment  of  the  note. 
The  rule  was  not  intended  to  subserve  a  technical  purpose, 
but  to  promote  substantial  justice,  and  when  it  sufficiently 
appears  that  the  indorser,  at  the  time  of  receiving  the  no- 


PROMISSORY   NOTES,    BILLS  OF  EXCHANGE,    ETC.  321 

tice,  knew  what  particular  piece  of  paper  was  referred  to, 
and  could  not  have  been  prejudiced  by  the  failure  to  de 
scribe  it,  he  cannot  be  permitted  to  object  that  his  informa 
tion  was  not  communicated  in  a  particular  manner.  And 
this,  though  the  notice  was  verbal,  and  the  note  neither 
produced  nor  described.  'Where  a  note  due  January,  eight 
een  hundred  and  fifty-seven,  was  indorsed  by  the  payie  to 
the  present  holder,  November  twenty-sixth,  eighteen  hun 
dred  and  fifty-eight,  and  he,  November  twenty-ninth,  eight 
een  hundred  and  fifty-eight,  demanded  payment  of  the  ma 
ker,  and  verbally  notified  the  indorser  of  such  demand,  and 
that  he  would  be  held  on  his  indorsement,  it  is  no  objection 
to  the  notice  that  it  did  not  state  the  time  of  demand.  The 
demand  was  good,  if  made  within  a  reasonable  time,  and  be 
fore  the  notice;  otherwise,  as  to  notes  indorsed  before  ma 
turity.  In  such  cases  the  notice  must  state  the  time  of  de 
mand  (14  Col.  160),  and  the  demand  must  be  made  on  the 
day  the  note  matures,  or  the  indorser  will  not  be  liable; 
and  to  fix  his  liability,  the  notice  must  show  that  the  de 
mand  was  made  at  the  proper  time.  14  Gal.  162,  163. 

SEC.  84.  If  a  demand  upon  the  makers  of  a  note  is  made 
at  maturity,  but  the  notice  to  the  indorsers  states  the  de 
mand  to  have  been  made  on  a  day  subsequent  to  maturity, 
such  notice  is  insufficient  to  bind  the  indorsers.  The  object 
of  notice  to  the  indorser  of  a  note  or  bill,  is  .to  advise  him 
of  his  liability,  so  that  he  may  take  the  earliest  steps  for  his 
own  security.  Indorsers  are  a  favored  class  of  litigants, 
and  the  courts  have  always  maintained  their  rights  with 
great  strictness.  If,  therefore,  the  very  language  of  the  no 
tice  conveys  to  the  indorser,  not  the  advice  of  his  liability 
being  fixed,  but  positive  information  which  assures  him 
necessarily  of  his  release  from  liability,  the  object  of  notice 
would  be  defeated  if  it  was  insisted  that  he  was  still  liable. 
The  notice  in  such  case,  instead  of  arousing  him  to  imme 
diate  effort  for  his  security,  lulls  him  into  false  security. 
Instead  of  being  the  protection  which  the  law  intended  it  to 
be,  it  would  be  a  snare  to  entrap  the  unwary,  and  such  a  doc 
trine  would  soon  lead  to  its  total  disuse.  5  Cal.  393-395. 

SEC.  85.  Notice  left  by  a  notary  at  the  residence  of  an 
indorser  of  a  note — he  being  absent  at  the  time — describing 
41 


322  JUSTICES'  TREATISE. 

the  note,  stating  that  it  was  protested  by  him  for  non-pay 
ment,  and  that  the  holder  looked  to  the  indorser  for  pay 
ment,  but  not  signed  by  any  one,  nor  indicating  in  any  way 
from  whom  it  proceeded,  is  insufficient  to  charge  the  indors 
er.  Such  notice  having  been  left  on  Saturday,  the  day  the 
note  matured,  the  record  shows  that  on  Monday,  in  a  con 
versation  between  the  indorser  and  the  notary,  ' '  something 
was  said  about  the  note,"  and  that  the  notary  informed  the 
indorser  that  plaintiff  was  "its  owner  and  holder:"  Held, 
that  as  a  verbal  notice,  this  conversation  was  insufficient; 
that  a  notice  must  inform  the  indorser,  either  expressly  or 
by  necessary  implication,  that  the  note  has  been  duly  pre 
sented  at  its  maturity  and  discharged.  16  Col.  376,  377. 

Form  of  Notice  of  Demand  and  Non-payment  of  Promissory  Note. 

SEC.  86.     The  following  is  a  form  of  notice  of  demand 
and  non-payment  of  promissory  note : 

City  and  county  of ,  18 ... 

To , 

Sir:    Please  take  notice,  that  a  certain note  dated 18 . . ,  for 

the  sum  of dollars,  payable months  after  date,  drawn  by 

in  favor  of ,  and  indorsed  by  you  on  the- day  of ,  A.D. 

18 . . ,  was  this  day  presented  by  me  to  said ,  the  maker  of  said 

note,  and  payment  thereof  demanded,  which  was-refused,  and  the  said 

note,  having  been  dishonored,  the  same  was  this  day  protested  by  me  for  the 
non-payment  thereof,  and  the  holder  looks  to  you  for  the  payment  thereof, 
together  with  all  costs,  charges,  interest,  expenses  and  damages,  already 
accrued  or  that  may  hereafter  accrue  thereon  by  reason  of  the  non-payment 

of  said  ....  note. 

Very  respectfully,  yours,  etc., 


Notary  public. 

Form  of  Notice  of  Protest  for  Non-payment. 

SEC.  87.     The  following  is  a  form  of  notice  of  protest  for 
non-payment : 
To , 

Sir:    Take  notice,  that  your  bill  for dollars,  at  days  from 

sight,  dated ,  drawn  and  accepted  by ,  has  this  day  been 

protested  for  non-payment  [or,  "that  the  bill  of ,  for    

dollars,  at  thirty  days  from  sight,  dated ,  indorsed  by  you  "],  and 

drawn  on  and  accepted  by ,  has,  etc.,  as  above.     [Or,  "that  the 

note  of ,  for dollars,  dated  the ,  payable  at  the 


PROMISSORY  NOTES,   BILLS  OP  EXCHANGE,   ETC.  323 

....  bank  ....  days  after  date  and  indorsed  by and , 

has  this  day  been,"  etc.,  as  above.] 

Dated ,18... 

Your  obedient  servant, 


Notary  public. 

Form  of  Notice  of  Protest  for  Non-acceptance. 
To ,   

Sir:  Take  notice,  that  your  bill  for dollars,  at days  from 

sight,  dated ,  18 . . ,  drawn  on in  favor  of ,  has 

this  day  been  protested  for  non-acceptance. 

Dated ,18... 


Notary  public. 
Acceptor  of  Bill. 

SEC.  88.  The  acceptor  of  a  bill  and  the  maker  of  a  note 
stand  in  the  same  relation  to  the  indorser  in  respect  to 
primary  liability.  13  Col.  86. 

SEC.  89.  No  person  within  this  state  shall  be  charged  as 
an  acceptor  on  a  bill  of  exchange,  unless  his  acceptance 
shall  be  in  writing,  signed  by  himself  or  his  lawful  agent. 
If  such  acceptance  be  written  on  a  paper  other  than  the 
bill,  it  shall  not  bind  the  acceptor,  except  in  favor  of  a  per 
son  to  whom  such  acceptance  shall  have  been  shown,  and 
who,  on  the  faith  thereof,  shall  have  received  the  bill  for  a 
valuable  consideration.  An  unconditional  promise,  in  writ 
ing,  to  accept  a  bill  before  it  is  drawn,  shall  be  deemed  an 
actual  acceptance  in  favor  of  every  person  who,  upon  the 
faith  thereof,  shall  have  received  the  bill  for  a  valuable  con 
sideration.  Every  holder  of  a  bill,  presenting  the  same  for 
acceptance,  may  require  that  the  acceptance  be  written  on 
the  bill ;  a  refusal  to  comply  with  such  request  shall  be 
deemed  a  refusal  to  accept,  and  the  bill  may  be  protested 
for  non-acceptance.  The  foregoing  shall  not  be  construed 
to  impair  the  right  of  any  person  to  whom  a  promise  to 
accept  a  bill  may  have  been  made,  and  who  on  the  faith  of 
such  promise,  shall  have  drawn  or  negotiated  the  bill,  to 
recover  damages  of  the  party  making  such  promise,  on  his 
refusal  to  accept  such  bill.  Every  person  upon  whom  a 
bill  of  exchange  is  drawn,  and  to  whom  the  same  is  de 
livered  for  acceptance,  who  shall  destroy  such  bill  or 


324  JUSTICES'  TREATISE. 

refuse,  within  twenty-four  hours  after  such  delivery,  or 
within  such  other  period  as  the  holder  may  allow,  to  return 
the  bill,  accepted  or  non-accepted,  to  the  holder,  shall  be 
deemed  to  have  accepted  the  same.  Gen.  Laivs,  427-432. 

SEC.  90.  Such  an  order  being  a  bill  of  exchange,  the 
written  acceptance  of  the  party  to  whom  it  is  addressed  is 
necessary  to  charge  him  as  acceptor  under  our  statute.  His 
verbal  acceptance  is  not  sufficient.  12  Cal.  97.  Where  the 
order  is  given  for  a  valuable  consideration,  and  for  the 
whole  amount  of  the  demand  against  the  drawee,  though 
worthless  as  a  bill,  it  operates  as  an  assignment  of  the  debt 
or  fund  against  which  it  is  drawn.  The  want  of  a  written 
acceptance  does  not  affect  the  right  of  the  payee  to  the 
money  due,  but  only  the  mode  of  enforcing  it.  "With  the 
acceptance  he  could  have  sustained  an  action  upon  the 
order;  without  it  he  must  recover  upon  the  original  de 
mand  by  force  of  the  assignment.  12  Cal.  92. 

SEC.  91.  A  person  not  previously  a  party  to  a  bill  of 
exchange,  who,  for  a  consideration,  accepts  the  same,  in 
curs  thereby  the  liabilities  of  an  acceptor  equally  as  if  he 
were  the  drawee.  Where  one,  not  the  drawee,  accepted  a 
draft  for  the  sole  purpose  of  protecting  the  interest  of  his 
foreign  correspondent,  in  a  bill  of  lading  accompanying  the 
draft  as  collateral  security,  and  took  at  the  time  an  assign 
ment  of  this  bill  of  lading :  Held,  that  although  the  collat 
eral  security  turned  out  to  be  of  little  value,  its  receipt  was 
a  legal  consideration  for  the  acceptance.  It  is  a  sufficient 
consideration  for  the  acceptance  of  a  draft  by  one  not  a 
party  to  the  paper,  that  the  payee  thereby  loses  the  accept 
ance  of  the  drawee.  Inducements,  not  amounting  to  fraud, 
held  out  by  the  payee  of  a  draft  to  procure  its  acceptance, 
do  not  invalidate  the  contract  of  the  accepter.  22  Cal.  661. 
K.  obtained  an  advance  from  a  bank  upon  a  bill  of  lading, 
for  butter,  purporting  to  have  been  shipped  from  Ireland  to 
Liverpool,  he  giving  to  the  bank  the  draft  or  bill  of  ex 
change  for  the  amount  of  money  advanced.  The  defend 
ants,  who  were  the  drawees,  accepted  the  bill,  and  received 
a  transfer  of  the  bill  of  lading  from  the  bank.  They  soon 
ascertained  that  the  bill  of  lading  was  a  forgery,  and  then 
refusing  to  pay  the  draft  a  suit  was  brought  on  their  accept- 


PROMISSORY  NOTES,   BILLS  OF  EXCHANGE,    ETC.  325 

ance.  The  court  held  that  these  facts  constituted  no  de 
fense  to  the  action ;  that  the  bank  were  the  indorsees  and 
for  value,  and  the  failure  or  want  of  consideration  between 
them  and  the  acceptors  constitute  no  defense ;  that  the 
acceptance  binds  the  defendants  conclusively,  as  between 
them  and  every  bonafide  indorsee  for  value;  and  that  it  did 
not  matter  whether  the  bill  was  accepted  before  or  after 
such  indorsement.  22  Col.  666. 

SEC.  92.  A  debtor  may  accept  orders  in  favor  of  differ 
ent  persons,  for  different  portions  of  the  debt,  and  those 
accepted  orders  will  bind  all  parties.  7  Cal.  260. 

SEC.  93.  A  letter  of  credit  containing  an  unconditional 
promise  to  accept  the  bills  drawn  upon  its  faith,  and  the 
statute  providing  that  such  promise,  in  writing,  made  before 
the  bill  is  drawn,  is  deemed  an  actual  acceptance  in  favor 
of  every  person  who  upon  its  faith  shall  receive  the  bill  fpr 
a  valuable  consideration.  Laws  of  1850,  Chap.  100,  Sec.  8 ; 
14  Cal.  454. 

SEC.  94.  Where  a  draft  is  accepted  conditionally,  to  be 
paid  upon  the  happening  of  a  contingency,  whether  the 
contingency  has  happened  is  a  question  for  the  jury.  8  Cal. 
353. 

SEC.  95.  Notaries  public  shall  have  authority  to  demand  * 
acceptance  and  payment  of  foreign  and  domestic  bills  of 
exchange,  and  to  protest  the  same  for  non-acceptance  and 
non-payment,  and  to  exercise  such  oth,er  powers  and  duties 
as  by  the  laws  of  nations,  and  according  to  commercial 
usages,  or  by  the  law  of  any  other  state  government  or 
country,  may  be  performed  by  notaries  public.  They  may 
also  demand  acceptance  of  inland  bills  of  exchange,  and 
payment  thereof,  and  of  promissory  notes,  and  may  protest 
the  same  for  non-payment  or  non-acceptance,  as  the  case 
may  require.  Gen.  Laws,  4694,  4695. 

Protest  of  Notary. 

SEC.  96.  The  original  protest  of  a  notary  public,  under 
his  hand  and  official  seal,  of  any  bill  of  exchange  or  prom 
issory  note,  for  non-acceptance  or  non-payment,  stating  the 
presentment  by  him  of  such  bill  of  exchange  or  note  for 
acceptance  or  payment,  and  the  non-acceptance  or  non- 


326  JUSTICES'  TREATISE. 

payment  thereof,  and  the  service  of  notice  on  any  or  all 
of  the  parties  to  such  bill  of  exchange  or  promissory  note, 
and  specifying  the  mode  of  giving  such  notice  and  the 
reputed  place  of  residence  of  the  party  to  such  bill  of  ex 
change  or  promissory  note,  and  specifying  the  mode  of 
giving  such  notice  and  the  reputed  place  of  residence  of 
the  party  to  whom  the  same  was  given  and  the  post-office 
nearest  thereto,  shall  be  prima  facie  evidence  of  the  facts 
contained  therein.  The  certificate  of  a  notary  public, 
drawn  from  his  record,  stating  the  protest  and  the  facts 
therein  contained,  shall  be  evidence  of  the  facts  in  the  like 
manner  as  the  original  protest.  Gen.  Laws,  4702. 

SEC.  97.  By  the  fifth  section  of  the  act  concerning  nota 
ries  public,  notes  are  made  protestable ;  and  by  the  tenth 
section  the  protest  of  a  notary  is  expressly  made  evidence 
of  demand  and  non-payment  or  non-acceptance  of  notes  as 
well  as  bills.  5  Col.  221. 

SEC.  98.  Section  ten  of  the  notary  public  act  contem 
plates  an  insertion  in  the  protest  of  the  notary  of  the  fact 
of  service  of  notice,  with  specifications  of  mode,  answer 
and  place  ;  and  both  the  original  protest  and  a  certificate 
from  the  record  of  the  notary  shall  be  held  equally  admis 
sible  in  evidence.  The  whole  object  of  the  record  is  to 
preserve,  in  a  permanent  form,  the  evidence  of  the  protest 
and  notice  by  which  the  liabilities  of  parties  had  become 
fixed.  8  Cal.  635. 

SEC.  99.  At  common,  law  promissory  notes  were  not 
protestable  securities ;  they  are  made  so  by  our  act,  and 
as  a  consequence  the  protest  of  them  must  be  attended 
with  all  the  incidents  belonging  to  foreign  bills  of  ex 
change.  The  recital  of  "notice  given"  in  the  protest  is 
made  evidence  of  the  fact  of  notice ;  the  notary  is  provi 
ded  with  a  fee-bill  for  giving  notice.  In  the  face  of  these 
enactments  it  would  be  difficult  to  maintain  that  giving 
notice  was  not  one  of  the  official  duties  of  the  notary,  for 
the  neglect  of  which  he  would  not  be  liable  on  his  bond  to 
the  party  injured.  6  Cal.  635,  636. 

SEC.  100.  In  this  state,  the  statute  provides  for  the  pro 
test  of  foreign  bills  of  exchange,  inland  bills  and  promis 
sory  notes.  It  requires  the  same  record  in  all  cases,  and 


PKOMISSORY  NOTES,    BILLS   OF   EXCHANGE,    ETC.  327 

gives  to  the  certificate  of  protest  of  a  promissory  note  the 
same  effect  as  to  the  certificate  of  a  protest  of  a  foreign  bill ; 
and  if  in  one  case  such  certificate  could,  by  necessary  im 
plication,  import  a  demand  of  payment  and  refusal  so  it 
will  in  all  cases.  There  is  no  necessity  for  protesting  a 
promissory  note ;  a  demand  of  payment,  and  upon  neglect 
or  refusal  notice  to  the  indorser  is  all  that  is  requisite. 
A  formal  protest  is  only  necessary  with  foreign  bills  of  ex 
change,  but  in  practice,  which  is  sanctioned  by  the  statute, 
it  is  customary  for  notaries  to  formally  protest  notes  upon 
demand  of  the  maker  and  his  refusal  of  payment ;  and  the 
idea  conveyed  by  the  word  "protest"  is  not  merely  that  a 
formal  instrument  has  been  drawn  up  by  a  notary  public, 
but  that  the  paper  in  question  has  been  dishonored  upon 
due  presentation  and  demand.  Where  a  notarial  certificate 
stated  that  "notice  of  protest"  was  duly  given  on  the 
third  day  of  grace,  and  it  did  not  state  that  the  present 
ment  was  made  during  office  hours,  it  was  held,  that  the 
certificate,  in  fair  construction,  imported  a  presentment 
during  the  proper  hours  of  business.  These,  except  when 
the  paper  is  due  from  a  bank,  range  through  the  whole 
day  down  to  bedtime  in  the  evening.  It  would  be  quite 
a  forced  presumption  in  the  words  of  an  officer,  saying  he 
presented  on  such  a  day,  to  fix  the  hour  either  before 
or  after  that  when  business  is  usually  transacted.  8  Col. 
636,  637. 

SEC.  101.  The  notarial  certificate  shows  that  the  protest 
was  made  at  the  request  of  Drexel,  Sather  &  Church,  bank 
ers,  but  does  not  state  that  they  were  at  the  time  holders  of 
the  note  or  agents  of  the  holder,  and  this  omission  is  the 
ground  of  the  objection  of  the  appellant  to  the  introduc 
tion  of  the  certificate.  It  is  no  doubt  true  that  the  pro 
test,  when  made  by  a  notary,  must  be  authorized  by  some 
one  connected  with  the  note,  as  holder  or  agent  or  as  being 
liable  for  its  payment.  A  mere  stranger  cannot  confer  the 
authority.  His  request  would  give  no  validity  to  the  nota 
ry's  act.  The  notary's  general  authority  under  the  statute 
only  extends  to  cases  properly  in  his  hands,  and  his  pro 
test  in  other  cases  is  a  mere  nullity.  But  the  objection  of 
the  appellant,  however  tenable,  upon  proof  that  the  bank- 


328  JUSTICES'  TREATISE. 

ers  were  strangers  to  the  note,  cannot  arise  from  the  omis 
sion  of  the  certificate.  The  presumption  that  the  authority 
of  the  notary  was  exercised  in  a  proper  case  —  in  other 
words,  upon  the  request  of  parties  entitled  to  direct  the 
protest  to  be  made — attends  the  certificate,  and  a  state 
ment  that  the  bankers  were  the  holders  of  the  paper  or 
agents  for  its  collection  could  not  add  to  the  force  of  this 
presumption.  13  Cal.  409. 

Waiver  of  Presentment  and  Notice,   How  Proved,   Effect  of. 

SEC.  102.  An  express  waiver  of  notice  of  non-payment 
is  equivalent  to  an  admission  that  the  note  has  been  pre 
sented  or  need  not  be  presented.  4  Cal.  63. 

SEC.  103.  Where  an  agent,  on  behalf  of  his  principal, 
the  indorser  of  a  note,  indorsed  upon  the  note,  on  the  day 
of  its  maturity,  a  waiver  of  notice  of  non-payment:  Held, 
that  it  was  competent  to  prove  by  the  agent  a  verbal  waiver 
of  demand  also;  that  where  demand  and  notice  are  both 
waived  in  one  agreement,  but  the  waiver  of  the  latter  only 
is  reduced  to  writing,  the  waiver  of  the  former  may  be 
proved  by  parol.  19  Cal.  158. 

SEC.  104.  The  defendant,  being  the  holder  oi  promis 
sory  notes  secured  by  mortgages,  indorsed  the  notes  and 
assigned  the  mortgages  before  maturity,  and  for  a  full  con 
sideration  to  the  plaintiff.  The  notes  were  not  presented 
to  the  payee  at  maturity,  and  no  notice  of  demand  and 
non-payment  was  given  to  the  defendant.  The  defendant, 
after  the  maturity  of  the  notes,  said  to  a  third  party:  "that 
the  fact  of  notice  not  having  been  given  at  a  proper  time 
would  make  no  difference  with  him — that  he  would  do  what 
Vas  right."  Upon  these  facts  it  is  not  proper  to  conclude 
that  ' '  no  presentment  and  notice  of  non-payment  was 
necessary  in  order  to  bind  the  defendant;  he,  having  taken 
security  in  advance,  is  liable  as  principal."  The  mortgages 
were  taken  to  secure  the  ultimate  payment  of  the  notes, 
were  assigned  by  defendant  at  the  time  of  indorsing  them, 
and  were  beyond  his  control.  They  were  evidently  not 
intended  to  indemnify  defendant  against  his  liability  as 
indorser,  and  could  have  no  such  effect.  The  declaration 
of  defendant  to  a  third  party  not  interested  in  the  subject 


PEOMISSOKY  NOTES,   BILLS  OF   EXCHANGE,    ETC.  329 

matter:  "that  he  would  do  what  is  right,"  was  not  a  suffi 
cient  waiver  of  presentment  and  notice  to  fix  the  liability  of 
the  indorser.  5  Cal.  482. 

Damages  on  Foreign  Bills. 

SEC.  105.  The  rate  of  damages  to  be  allowed  and  paid 
upon  the  usual  protest  for  non-payment  of  bills  of  exchange, 
drawn  or  negotiated  within  this  state,  shall  be  as  follows : 
1st.  If  such  bill  shall  have  been  drawn  upon  any  person 
or  persons  in  any  of  the  United  States,  east  of  the  Rocky 
mountains,  fifteen  dollars  upon  the  hundred  upon  the  prin 
cipal  sum  specified  in  such  bill.  2d.  If  such  bill  shall  have 
been  drawn  upon  any  person  or  persons  in  any  port  or  place 
in  Europe  or  in  any  foreign  country,  twenty  dollars  upon 
the  hundred  upon  the  principal  sum  specified  in  such  bill. 
Such  damages  shall  be  in  lieu  of  interest,  charges  of  pro 
test,  and  all  other  charges  incurred  previous  to  and  at  the 
time  of  giving  notice  of  non-payment;  but  the  holder  of 
such  bill  shall  be  entitled  to  demand  and  recover  lawful 
interest  upon  the  aggregate  amount  of  the  principal  sum 
specified  in  such  bill,  and  of  the  damages  thereon,  from 
the  time  at  which  notice  of  protest  for  non-payment  shall 
have  been  given,  and  payment  of  such  principal  sum  shall 
have  been  demanded.  If  the  contents  of  such  bill  be  ex 
pressed  in  money  of  account  of  the  United  States,  the 
amount  due  thereon  and  of  the  damages  herein  allowed  for 
the  non-payment  thereof,  shall  be  ascertained  and  deter 
mined  without  any  reference  to  the  rate  of  exchange  exist 
ing  between  this  state  and  the  place  on  which  such  bill 
shall  have  been  drawn,  at  the  time  of  the  demand  of  pay 
ment,  or  of  notice  of  non-payment.  If  the  contents  of 
such  bill  be  expressed  in  the  money  of  account  or  currency 
of  any  foreign  country,  then  the  amount  due,  exclusive  of 
the  damages  payable  thereon,  shall  be  ascertained  and 
determined  by  the  rate  of  exchange,  or  the  value  of  such 
foreign  currency  at  the  time  of  the  demand  of  payment. 
Where  a  bill  of  exchange  shall  be  protested  for  non-accept 
ance,  the  same  rate  of  damages  shall  be  allowed  on  the 
protest  for  non-acceptance,  as  provided  above,  and  shall  be 
in  lieu  of  interest,  charges  of  protest  and  all  other  charges, 
42 


330  JUSTICES'  TREATISE. 

incurred  previous  to  and  at  the  time  of  giving  notice  of 
non-acceptance;  but  the  holder  shall  be  entitled  to  recover 
interest  upon  the  aggregate  amount  of  the  principal  sum 
specified  in  the  bill  and  of  the  damages  thereon,  from  the 
time  at  which  notice  of  protest  for  non-acceptance  shall 
have  been  given.  The  damages  allowed  by  this  act  shall 
be  recovered  only  by  the  holder  of  a  bill,  who  shall  have 
purchased  the  same  or  some  interest  therein,  for  a  valuable 
consideration.  Gen.  Laws,  433-438. 


SEC.  106.  One  who  puts  his  name  on  the  back  of  a  prom 
issory  note  out  of  the  course  of  regular  negotiability,  is  not 
an  indorser,  according  to  strict  commercial  meaning.  He 
is  termed  a  guarantor,  and  this  is  so,  whether  his  inscrip 
tion  is  simply  in  blank  or  preceded  by  the  words:  "I  guar 
antee  the  payment  of  the  within."  2  Gal.  486.  Such  guar 
antee  is  not  within  the  statute  of  frauds,  for  the  want  of 
a  consideration  expressed  in  writing.  The  contract — the 
promissory  note — imports  a  consideration.  Each  one  who 
writes  his  name  upon  it  is  a  party  to  it,  and  from  its  com 
mercial  character,  each  party  to  it  is  an  original  undertaker. 
The  liability  of  one  may  be  with  conditions,  that  of  others 
without  any;  or,  in  other  words,  the  liability  may  be  pri 
mary  and  secondary.  But  each  name  constitutes  a  direct 
original  promise  founded  upon  the  same  consideration.  2 
Col.  487. 

SEC.  107.  If  a  promissory  note  is  indorsed  by  a  third 
person  before  delivery  to  the  payee,  the  indorser,  although 
prima  facie,  he  would  be  presumed  to  be  an  accommodation 
indorser  for  the  payee,  and  therefore,  not  liable  to  him,  yet 
upon  proof  that  such  was  not  the  intent  with  which  he  acted, 
but  that  his  design  was  to  be  a  surety  or  guarantor  for  the 
maker,  becomes  a  guarantor  of  the  note,  and  his  liability 
to  the  payee  is  beyond  question.  2  Cal.  606. 

SEC.  108.  The  liability  of  a  guarantor  of  a  note  must  be 
fixed  in  the  same  manner  as  that  of  an  indorser.  4  Cal.  277. 

SEC.  109.  Where  the  defendant  in  consideration  of  the 
extension,  by  plaintiffs,  of  a  note  held  by  them  against  A, 
executed  a  guaranty  that  the  same  should  be  paid  within  a 


PROMISSORY  NOTES,   BILLS  OF  EXCHANGE,    ETC.  331 

specified  time,  with  increased  interest,  by  the  checks  of  the 
defendant  and  from  the  proceeds  of  sales  of  his  own  prop 
erty,  and  providing  that  a  failure  of  defendant  to  comply 
with  his  guaranty  should  operate  as  a  determination  of  the 
extension  granted  to  A:  Held,  that  under  the  proviso,  the 
plaintiffs  must  first  exhaust  their  remedy  against  A  on  the. 
original  demand,  and  that  then  they  could  compel  the  guar 
antor  to  make  good  the  deficiency.  7  Col.  242. 

SEC.  110.  Where  the  holder  of  a  note,  after  its  maturity 
obtains  from  a  stranger  to  the'  note  a  guaranty  of  its  pay 
ment  within  a  certain  time,  there  is  no  presumption  of  law 
that  such  a  guaranty  is  fer  the  benefit  of  the  maker,  or  that 
it  extended  to  him  the  time  of  payment.  It  is  like  any 
other  contract  which  is  undertaken  for  a  money  considera 
tion.  The  inference,  if  there  is  any,  is,  that  like  other 
transactions  of  business,  the  parties  entering  into  it,  do  so 
because  it  is  to  their  interest.  If  A  has  a  paper  which  he 
desires  to  be  made  more  secure  by  a  new  contract,  he  may, 
as  is  often  done,  give  another  a  premium  to  guaranty  it;  or 
the  other  may  be  in  some  way  interested  in  insuring  it,  or 
some  moral,  honorary,  benevolent  or  friendly,  motive  may 
influence  him;  or  being  agent  in  taking  the  security  and 
having  full  confidence  in  the  goodness  of  the  note,  he  is  will 
ing  to  satisfy  the  principal  by  guaranteeing  it.  But  this 
motive,  whatever  it  may  be,  is  not  guessed  at  by  the  law, 
which  does*  not  raise  a  presumption  from  such  loose  sur 
mises,  some  of  which  may  be  more  or  less  probable,  but 
leaves  the  fact  to  be  established  by  proof  when  necessary. 
10  Cal  427,  428. 

SEC.  111.  Where  a  promissory  note  was  made  payable 
to  S.,  and  previously  to  its  delivery  to  the  payee,  was  in 
dorsed  for  the  accommodation  of  the  maker  by  H.  and 
brother  and  defendant,  upon  an  agreement  of  the  indorsers 
with  each  other  that  each  would  become  surety  if  the  other 
would :  Held,  that  the  indorsers  were  guarantors,  and  were 
jointly  and  not  severally  liable  in  a  suit  by  the  payee,  or  a 
third  person  taking  the  note  after  maturity.  There  must  be 
express  words  to  create  a  several  liability^.  The  decision 
of  this  court  (in  2  Cal.  485)  only  goes  to  the  extent  of  hold 
ing  that  a  notice  of  protest  is  as  essential  to  charge  a  guar- 


332  JUSTICES'  TEEATISE. 

aiitor  as  an  indorser.  It  does  not  change  the  previous  rule 
in  relation  to  guarantors  in  any  other  respect.  The  con 
tract  of  both  an  indorser  and  a  guarantor  is  conditional,  but 
the  conditions  are  unlike.  The  contract  of  indorsement  is 
primarily  that  of  transfer;  the  contract  of  guaranty  is  that  of 
security.  13  Gal.  31,  32.  In  regard  to  the  question  whether 
the  guaranty  "for  value  received,  we  guarantee  the  payment 
of  the  within  note,"  is  an  unconditional  obligation  to  pay 
the  amount  of  the  note,  the  authorities  are  conflicting  in 
other  states,  and  the  ablest  jurists  are  divided  in  opinion 
upon  the  question.  Probably,  in  number,  the  preponderance 
is  in  favor  of  the  rule  of  conditional  liability,  though  it 
may  well  be  questioned  if  the  weight  of  argument  be  not  on 
the  other  side.  But  early  in  the  history  of  our  jurispru 
dence,  it  has  been  held  that  notice  is  necessary  in  such 
cases,  as  in  cases  of  indorsement  (2  Col.  486),  and  this  after 
full  discussion.  Subsequently  (5  Cal.  138),  the  same  doc 
trine  was  reaffirmed.  13  Cal.  579,  580. 

SEC.  112.  The  question  in  this  case  is  the  legal  obliga 
tion  imported  by  an  instrument  in  this  form  :  "  Sixty  days 
from  date,  for  value  received,  we  jointly  promise  to  pay  F. 
Beeves  or  bearer,  the  sum  of  four  hundred  dollars,  etc., 
October  11,  1858,  (signed)  E.  B.  Howe,  J.  E.  Mayo;"  in 
dorsed:  "I  guarantee  the  collection  of  the  within  note  when 
due,  (signed)  A.  Hay  ward."  The  defendant  Hayward  was 
sued  together  with  the  makers,  and  judgment  had  against 
him  without  further  proof  than  the  paper,  and  that  the  in 
dorsement  was  made  contemporaneously  with  the  signing  of 
the  note.  The  question  is,  whether  this  engagement  of 
Hayward  is  an  original  obligation  to  pay  the  money  on  the 
maturity  of  the  note.  Obviously,  this  indorsement  of  Hay- 
ward  is  not  his  promissory  note,  for  a  promissory  note  is 
a  direct  engagement  by  the  payor  to  pay  his  own  debt; 
whereas  this  is  an  engagement  to  pay  the  debt  of  another. 
The  engagement  is  in  aid  of  and  collateral  to  the  original 
liability  of  the  principal  or  party  for  whom  the  guarantee 
is  given.  Nail  vs.  Farmer,  5  Denio,  487  ;  Munson  vs.  Dur 
ham,  3  Hill,  591;  Story  on  Prom.  Notes,  Sec.  457.  It  is  not 
necessary  to  inquire  whether  this  guarantee  is  void  because 
it  does  not  express  the  consideration.  See,  however,  6  Cal. 


PKOMISSOKY  NOTES,    BILLS   OF  EXCHANGE,    ETC.  333 

102;  7  Id.  32.  It  is  enough  for  the  purposes  of  this  decision 
to  hold  that  appellant  was  a  guarantor  and  not  a  promisor, 
and  therefore  that  he  was  entitled  to  notice  before  he  could 
be  charged  on  his  contract.  Rigg  vs.  Waldo,  2  Cal.  486; 
Pierce  vs.  Kennedy,  5  Cal.  138;  Geigervs.  Clark,  April  Term, 
1859;  Lightstone  vs.  Louis  et  al.,  4  Cal.  277.  The  demurrer 
should  have  been  sustained.  16  Cal.  153. 

SEC.  113.  The  following  opinion,  delivered  August  4th, 
1870,  is  a  review  of  the  decisions  on  the  subject  in  hand, 
and  confirms  the  doctrine  that  a  guarantor  as  well  as  in- 
dorser  is  entitled  to  demand  and  notice  :  The  defendant 
Wilcox  signed  his  name  in  blank  upon  the  back  of  a  note 
and  before  the  delivery  of  the  same.  After  the  note 
became  due,  but  too  late  to  charge  Wilcox  as  indorser, 
demand  was  made  for  payment,  and  upon  its  refusal, 
notice  was  given  to  Wilcox.  It  is  claimed  that  the  failure 
to  make  demand  and  give  notice  in  time  discharged  defend 
ant  Wilcox.  A  great  diversity  of  opinion  exists  as  to  the 
nature  of  the  liability  of  one  not  being  a  party  who  indorses 
his  name  in  blank  upon  a  note  before  delivery.  In  Eng 
land,  he  is  held  to  be  a  guarantor,  and  his  contract  is  that 
the  maker  of  the  note  will  pay  it  at  maturity,  or,  if  he  does 
not,  the  guarantor  will.  No  demand  or  notice  is  considered 
necessary  as  a  condition  precedent  to  fixing  the  liability  of 
the  guarantor  or  to  the  commencement  of  the  action ;  but 
a  failure  to  make  demand  and  give  notice,  together  with 
proof  of  injury,  is,  pro  tanto,  a  defense.  In  some  states,  as 
in  Massachusetts,  Vermont  and  Louisiana,  he  is  regarded 
as  a  surety  or  joint  maker  of  the  note,  and  unconditionally 
liable.  In  some  states  he  is  held  to  be  a  guarantor,  and 
various  effects  have  been  given  in  these  states  to  the  con 
tract  of  guarantee,  sometimes  being  held  to  be  conditional, 
at  other  times  absolute  ;  and  very  frequently  parol  evidence 
is  admitted  to  explain  what  the  contract  really  was.  In 
other  states,  as  in  New  York,  Tennessee,  Iowa,  and  we  may 
add,  California,  he  is  held  as  indorser.  So  far  back  as 
1852,  the  supreme  court  of  this  state,  in  Riggs  vs.  Waldo  (2 
Cal.  487),  held  that  the  liability  of  a  guarantor  under  such 
circumstances  was  that  of  an  indorser;  and  this  case  has 
been  affirmed  by  numerous  subsequent  decisions.  The 


334  JUSTICES'  TREATISE. 

respondent,  however,  claims  that  in  these  cases  no  demand 
and  notice  whatever  had  been  made  or  given,  and  therefore 
it  was  only  necessary  to  hold  in  these  cases  that  demand 
and  notice  are  necessary  to  fix  the  liability  of  a  guarantor. 
"YVe  think,  however,  this  is  not  a  proper  construction  of  the 
decisions.  In  Riggs  vs.  Waldo,  the  question  was  as  to  the 
nature  of  the  liability  of  one  who,  not  being  a  party  to  a 
note,  indorses  his  name  in  blank  before  delivery;  and  it 
was  held,  that  "his  undertaking  is  attended  with  all  the 
liability  and  all  the  rights  of  an  indorser  stricti  juris"  It 
was  held  that  demand  and  notice  were  necessary,  because 
his  liability  was  that  of  an  indorser ;  otherwise  no  demand 
and  notice  would  be  necessary  to  fix  the  liability,  nor  could 
they  become  material  except  upon  the  question  of  diligence 
where  loss  has  been  sustained.  The  decisions  in  this  state 
are  substantially  in  accord  with  those  which  hold  that  one 
who,  not  being  a  party  to  a  negotiable  bill,  indorses  it  in 
blank  for  the  purpose  of  adding  to  its  credit,  is  an  indorser, 
and  in  view  of  the  diversity  of  opinion  on  the  subject  we 
should  not  now  feel  inclined  to  disturb  the  doctrine,  even  if 
it  did  not  meet  our  approval.  But  we  think  the  doctrine 
of  Biggs  vs.  Waldo,  by  far  the  most  reasonable  and  just. 
There  seems  no  difference  between  the  undertaking  of  a 
general  guarantor  and  that  of  an  indorser,  except  that  the 
former,  being  a  party  to  the  note,  his  contract  is  construed 
by  the  law  merchant,  while  the  undertaking  of  the  latter  is 
construed  by  the  general  law  of  contracts.  Each  under 
takes  that  the  maker  will  pay  the  note  at  maturity,  and  in 
case  of  being  compelled  to  pay  it  for  the  principal,  each  has 
recourse  upon  his  principal  to  recover  the  amount  paid, 
and  there  is  no  good  reason  why  they  should  not  have  equal 
opportunities  to  secure  themselves  from  the  assets  of  the 
maker.  The  law  merchant  has  established  what  is  due 
diligence  and  what  is  a  reasonable  time  within  which  de 
mand  and  notice  should  be  made  to  bind  an  indorser, 
and  upon  principle  the  same  diligence  should  be  used  to 
charge  one  who  has  assumed  the  same  responsibility  as  a 

guarantor. 

Sureties. 

SEC.  114.     A  surety  of  a  note  is  a  secondary  promisor, 


PROMISSOKY   NOTES,    BILLS  OF  EXCHANGE,   ETC.  335 

and  it  is  not  material  on  what  part  of  the  note  he  places  his 
name;  if  the  character  of  his  liability  is  made  to  appear, 
his  rights  are  the  same  as  those  of  an  indorser.  6  Cal.  396. 
It  is  not  so  much  the  position  of  the  party's  name  upon  the 
paper  which  denotes  his  liability  (although  it  frequently 
does  so),  but  it  is  the  intention  with  which  he  executes  it, 
if  such  intention  is  made  to  appear  by  the  note  itself, 
which  determines  whether  his  liability  is  primary  or  sec 
ondary.  Where  A  authorizes  B  to  sign  his  name  as  surety 
to  a  note,  and  B  signs  A's  name  with  his  own,  as  joint  and 
several  makers  of  the  note,  A  is  not  liable — the  authority 
not  being  exercised  in  the  manner  delegated.  6  Cal.  397. 

SEC.  115.  Where  a  promissory  note  is  signed  by  two 
persons  in  the  same  manner,  with  nothing  on  the  face  of  the 
note  to  show  that  one  was  merely  a  surety,  he  cannot  set 
up  in  defense  that  he  was  such,  and  that  the  plaintiff  Jiad 
not  sued  in  due  time  and  had  given  no  notice  of  demand 
and  protest.  9  Cal.  21.  Mere  neglect  to  sue  is  no  de 
fense.  5  Cal.  173;  9  Cal.  21. 

SEC.  116.  A  joint  maker  of  a  promissory  note,  signing  it 
as  surety,  is  entitled  to  demand  and  notice  before  he  can  be 
held  to  pay  it.  The  obligation  of  the  surety  in  such  cases 
is  that  of  an  original  promisor.  10  Cal.  288;  overruling  6 
Cal.  394.  A  party  signing  a  joint  note  with  another,  for  the 
latter 's  accommodation,  is  not  a  mere  guarantor  or  indorser. 
The  two  classes  of  obligation  are  widely  variant.  The 
maker  upon  the  face  of  the  paper,  with  whatever  motive 
or  purpose  he  may  sign  it,  is  bound  by  the  contract  which 
he  signs,  according  to  the  legal  effect  and  meaning  of  the 
words.  He  cannot  vary  that  meaning  by  parol.  The  words 
Import  an  unconditional  promise  to  pay  the  payee  so  much 
money  at  a  certain  time.  The  law  affixes  to  this  unequivo 
cal  language  its  obvious  signification.  The  payor  is  not 
permitted  to  contradict  the  words  by  showing  that  when  he 
promised  to  pay  absolutely  he  meant  to  bind  himself  to 
pay  conditionally  or  on  some  contingency.,  or  if  another  did 
not  or  if  demand  was  made  and  notice  given.  This  con 
tract  being  his  own  and  precise  in  its  terms,  he  must  fulfill 
it  according  to  those  terms.  He  is  not — and  this  is  the 
distinction  in  the  two  classes  of  engagements — guaranteeing 


336  JUSTICES'  TREATISE.  , 

another's  contract,  but  lie  is  making  his  own;  and  whether 
the  consideration  of  the  contract  inure  to  him  or  his  friend 
is  wholly  immaterial,  so  far  as  thq  construction  and  obliga 
tion  of  it  are  concerned.  An  indorsement  or  a  guaranty  of 
a  note  is  wholly  different.  It  is  an  agreement  of  itself — a 
new  contract,  undertaken  for  another,  that  the  latter  will 
perform  his  contract.  The  difference  between  a  maker  and 
an  indorser  or  guarantor  is,  that  the  contract  of  the  first, 
by  its  terms,  imports  an  unconditional  obligation  to  pay 
money — that  of  the  last,  by  its  terms,  imports  a  condi 
tional  obligation.  The  rules  of  law  settle  this  species  of 
contract  as  well  as  others,  and  prescribe  how  they  may  be 
created — their  legal  effect  and  mode  of  enforcement.  The 
creditor  may  take  his  security  in  either  form;  the  other 
parties  may  contract  or  not,  as  they  choose,  but  the  con 
tracts  when  made  must  stand  or  fall  by  the  legal  rules  pre 
scribed  for  them,  respectively.  There  is  no  magic  in  the 
words  "surety"  or  "guarantor,"  which  gives  to  a  contract 
made  by  this  class  of  contractors  any  effect  denied  to  the 
contracts  of  other  persons.  A  surety  for  another  may  bind 
himself  to  a  creditor  for  his  principal,  if  he  uses  apt  words 
of  obligation,  just  as  an  agent  may  be  bound  for  his  prin 
cipal  or  a  principal  for  himself — the  obligation  arising  from 
the  language  of  contract,  not  the  man  who  makes  it.  There 
is  no  reason,  if  the  parties  so  agree,  why  -  the  guarantor  or 
indorser  may  not  bind  himself,  absolutely  and  primarily, 
to  pay  the  debt  of  another;  nor  why  a  man  may  not  as  well 
bind  himself  primarily  to  pay  a  note  for  another  as  surety 
for  the  other,  as  well  as  secondarily.  He  may  pledge  his 
goods  or  credits  or  note,  for  him,  and  bind  himself,  with 
out  respect  to  any  act  to.  be-  done  by  the  principal  or  the 
creditor.  Precisely  such  is  the  nature  of  an  obligation 
made  in  absolute  terms,  on  a  consideration,  by  A  to  pay  so 
many  dollars  to  B  by  a  certain  day,  though  the  note  should 
say  in  the  body  of  it  that  A  promised  to  pay  for  C  or  as 
surety  for  C.  If  such  a  note  could  be  enforced  as  an  origi 
nal  promise,  if  made  by  A  alone,  it  is  no  less  an  original 
promise  when  made  by  A  and  C,  jointly  and  severally, 
though  the  joint  note  showed  that  A  made  it  as  surety  for 
C.  It'is  immaterial  to  the  payee  how  or  why  A  signs  it; 


PROMISSORY  NOTES,   BILLS  OF  EXCHANGE,   ETC.  337 

that  is  a  matter  between  the  two  payers ;  he  is  satisfied  with 
holding  them  both  as  principals  to  him,  and  in  doing  this 
he  is  only  enforcing  the  language  of  their  own  voluntary 
contract,  according  to  its  own  plain  words.  10  CaL  289, 
290.  A  guarantor  may,  usually,  be  a  surety,  but  a  surety 
is  not  necessarily  a  guarantor.  10  CaL  290.  The  court 
in  a  former  case  (6  CaL,  about  394)  say:  "It  is  not  so  much 
the  position  of  a  party's  name  upon  the  paper  which  denotes 
his  liability  (although  it  frequently  does  so),  but  it  is  the 
intention  with  which  he  executes  it,  if  such  intention  is 
made  to  appear  by  the  note  itself,  which  determines  whether 
his  liability  is  primary  or  secondary."  This  may  be;  but 
the  position  of  the  names  beneath  the  words  which  import 
a  direct,  primary  obligation  to  pay  the  money  to  the  payee, 
is  conclusive  evidence  of  that  intention;  the  bare  name  on 
the  back  of  the  paper  might  not  be.  .The  word  "surety," 
written  opposite  the  name  of  one  of  the  makers,  is  held  to 
indicate  no  more  than  that,  as  between  the  payers,  such 
maker  is  his  surety.  It  is  convenient  for  the  purpose  of 
evidence,  in  case  the  surety  has  to  pay  the  money,  but  it 
does  not  in  any  way  control  the  words  of  the  note  as 
between  such  payor  and  the  payee;  for  there  is  no  neces 
sary  inconsistency  between  an  absolute  engagement  to  pay 
money  and  paying  it  on  behalf  or  as  security  for  another 
man.  It  is  useless  to  inquire  into  the  intent  of  the  payor 
in  such  a  case;  the  intent  must  be  presumed  to  be  accord 
ing  to  the  law.  10  CaL  290,  291. 

When  Surety  Released. 

SEC.  117.  Where  a  promissory  note  is  executed  jointly 
by  two  persons,  and  one  of  them  is  surety  for  the  other, 
and  at  a  time  when  the  principal  in  the  note  is  solvent  the 
surety  makes  demand  on  the  creditor  to  proceed  at  once  and 
collect  the  debt  from  the  principal,  and  the  creditor  fails  to 
sue  the  principal,  who  afterwards  becomes  insolvent,  the 
surety  is  not  thereby  released  from  his  liability  on  the 
note.  24  CaL  158. 

Actions  of  Sureties  against  Maker. 

SEC.  118.     Where  A  executes  a  promissory  note  to  B, 
43 


338  JUSTICES'  TKEATISE. 

bearing  interest  at  three  per  cent,  per  month,  and  C,  D  and 
JE,  sign  the  note  as  sureties  for  A,  and  B  afterwards  recovers 
judgment  on  the  note  against  A,  the  maker,  and  the  sure 
ties,  and  the  sureties  pay  the  judgment,  in  an  action  by  the 
sureties  against  the  maker  for  the  money  thus  paid,  they 
can  only  recover  judgment  for  the  amount  of  money  paid, 
with  interest  at  the  rate  of  ten  per  cent,  per  annum  from 
the  time  of  payment.  Where  there  is  no  agreement  or 
contract  in  writing  fixing  a  different  rate  of  interest,  par 
ties  are  limited  in  their  recovery  to  ten  per  cent,  per  annum. 
The  rate  of  interest  fixed  in  a  promissory  note  is  not  a  con 
tract  or  agreement  in  writing  between  the  maker  of  and 
sureties  on  the  note.  23  Cal.  63. 

"When  and  by  whom  Suit  can  be  brought  on  Note. 

SEC.  119.  A  note  payable  one  day  after  date,  without 
grace,  cannot  be  sued  on  the  day  after  its  execution.  18 
Cal.  378. 

SEC.  120.  One  partner  may  waive  grace  upon  a  firm 
note  made  by  him ;  and  where  such  note  is  made  payable 
on  demand,  without  grace,  an  action  upon  it  commenced  the 
next  day  after  its  execution  is  not  prematurely  brought.  21 
Cal.  636. 

SEC.  121.  The  payee  has  all  of  the  day  on  which  the 
note  falls  due  in  which  to  pay  it,  and,  therefore,  a  suit  com 
menced  on  that  day  is  premature.  3  Cal.  262. 

SEC.  122.  TliQ  holder  of  a  negotiable  note  is  prima  facie 
the  owner  thereof  for  a  valuable  consideration.  *  8  Cal.  49. 

SEC.  123.  The  party  to  whom  a  note  is  made  payable  is 
prima  facie  the  owner.  His  right  to  maintain  the  action 
cannot  be  questioned  on  the  ground  that  it  belongs  to  a 
third  party,  except  the  defendant  pleads  payment  to  or 
offset  against  that  party.  5  Cal.  485. 

SEC.  124.  It  is  no  objection  to  recovery  on  a  bill  that, 
by  special  indorsements  on  it,  title  is  shown  out  of  the 
payee,  without  any  retransfer  from  the  last  indorsee  to  him, 
if  there  be  proof  that  the  indorsements  were  made  simply 
for  collecting  the  bill,  and  that  the  indorsees  had  no  inter 
est  in  it.  14  Cal.  450. 

SEC.  125.     Because  a  mortgage,  given  to  secure  the  pay- 


PROMISSOEY  NOTES,   BILLS  OP  EXCHANGE,    ETC.  339 

ment  of  several  notes  falling  due  at  different  times,  provides 
for  payment  at  times  or  in  modes  different  from  the  notes, 
is  no  objection  to  suit  on  the  notes  at  maturity.  14  Col.  94. 
The  notes  and  the  mortgage  are  not,  for  all  purposes,  one 
transaction  or  one  contract.  For  many  purposes  they  are 
different  contracts.  The  payee  may  sue  on  his  note  without 
proceeding  to  enforce  his  mortgage.  He  may  never  enforce 
it  or  have  occasion  to  enforce  it.  The  contract  of  indebted 
ness  is  one  thing,  the  contract  by  which  that  indebtedness 
is  secured  is  another  thing.  The  terms  of  these  contracts 
may  be  widely  different.  The  note  may  be  absolutely  due 
by  a  given  day,  the  security  may  provide  for  its  payment 
by  a  far  distant  day,  and  this  security  may  be  qualified  or 
conditional,  partial  or  complete,  contingent  or  absolute.  In 
other  words,  the  contract  by  which  security  is  afforded  may 
be  wholly  different ;  indeed,  often  is  wholly  different  from 
the  terms  of  the  contract  of  indebtedness ;  if  in  the  form  of 
a  mortgage,  the  mortgage  is  never  legally  enforceable  on 
the  day  the  debt  is  due,  but  the  note  carries  with  it  the 
obligation  of  prompt  payment  on  that  day.  14  Gal.  99,  100. 

SEC.  126.  Where,  in  a  mortgage  to  secure  the  purchase 
money  of  land  for  which  notes  were  given  falling  due  at 
different  times,  the  condition  was:  "Provided,  that  pre 
vious  to  the  dates  of  said  payments  it  shall  have  been  de 
cided  by  competent  authority  that  the  title  to  said  land  is 
fully  vested  in  the  party  of  the  second  part,  and  the  party 
of  the  first  part  is  given  full  and  peaceable  possession,"  the 
holder  of  one  of  the  notes  transferred  before  maturity  may 
sue  on  it  at  maturity,  although  the  title  to  the  land  has  not 
been  settled  and  peaceable  possession  not  given.  The  fact 
that  the  purchaser  of  the  note  saw  the  mortgage  and  note 
was  no  notice  to  him  of  any  valid  defense  to  the  note.  14 
Col.  94. 

SEC.  127.  Where  F.  sues  the  maker  of  a  note  which  has 
two  indorsements  signed  by  the  payee — the  first,  a  receipt 
from  F.  for  the  amount  due;  the  second,  in  the  words, 
"without  recourse  to  me" — there  is  no  presumption  that 
the  indorsements  were  made  at  different  times  or  that  the 
payment  was  a  voluntary,  unconditional  payment.  In  such 
a  case  the  court  may  instruct  the  jury,  as  a  matter  of  law, 


340  JUSTICES'  TREATISE. 

to  find  for  the  plaintiff,  in  the  absence  of  evidence  showing 
a  legal  or  moral  obligation  on  the  part  of  plaintiff  to  pay 
the  debt  of  defendant.  8  Cal.  47. 

Past  Notes  or  Checks  or  Negotiable  Paper. 

SEC.  128.  In  the  case  of  the  loss  or  destruction  of  nego 
tiable  paper,  the  plaintiff  cannot  maintain  an  action  with 
out  first  indemnifying  the  defendant.  5  Cal.  484. 

SEC.  129.  Where  it  is  alleged  that  a  negotiable  security, 
as,  for  example,  a  banker's  certificate  of  deposit,  has  been 
lost  or  destroyed,  the  maker  of  it  has  a  right  to  require 
indemnity  against  all  future  claims  under  it  before  its  pay 
ment  can  be  enforced  by  law.  It  may  in  some  cases  ope 
rate  as  a  great  inconvenience,  and  may  even  produce  hard 
ship,  but  so  does  nearly  every  mischance  or  misfortune.  4 
Cal.  41. 

SEC.  130.  Where  a  check  had  been  lost  and  paid  by 
a  banker  upon  a  forged  indorsement :  Held,  that  upon  a 
suit  for  the  same,  after  a  refusal  by  the  banker  to  deliver 
the  check  to  the  owner,  in  the  absence  of  rebutting  evidence 
the  measure  of  damages  must  be  the  full  value  of  the  amount 
for  which  it  was  drawn.  5  Cal.  124. 

SEC.  131.  If  a  promissory  note  is  assigned  by  the  payee 
before  maturity,  payment  to  the  assignor  is  no  defense  to 
an  action  brought  by  the  assignee  against  the  maker,  unless 
it  was  made  before  the  assignment  and  the  assignee  took 
the  assignment  with  notice  of  the  payment.  26  Cal.  288. 

SEC.  132.  Commercial  paper  transferred  before  maturity 
as  collateral  security  for  a  pre-existing  debt  is  not  subject 
to  the  defenses  of  payor  against  payee.  8  Cal.  260  affirmed. 
14  Cal.  94. 

SEC.  133.  A  draft  or  order  by  A  on  B  to  pay  C  of  order 
the  balance  due  A  by  B,  is  not  a  negotiable  security,  not 
being  for  any  fixed  sum,  but  if  indorsed  by  B,  "  balance 
due,  one  thousand  dollars,"  over  his  signature,  it  becomes 
a  promise  by  B  to  pay  C  or  his  order  that  sum,  and  is 
negotiable.  Where,  in  such  a  case,  B  was  garnisheed  in  a 
suit  against  C,  the  day  before  he  made  the  indorsement, 
but  failed  to  inform  C  thereof,  and  C  for  a  valuable  consid 
eration  sold  the  order,  as  indorsed,  to  D,  an  innocent  pur- 


PROMISSORY  NOTES,    BILLS  OF  EXCHANGE,    ETC.  341 

chaser,  it  was  held,  that  B,  having  made  the  order  nego 
tiable  and  put  the  same  in  circulation,  is  estopped  from 
setting  up  against  it  any  antecedent  matter,  and  is  liable 
to  D  for  the  full  amount  thereof.  And  where  the  order 
was  on  a  firm,  and  such  an  indorsement  was  made  by  one 
of  the  firm,  it  operated  as  a  release  of  the  firm  by  the  holder 
and  as  an  acceptance  by  the  partner  indorsing.  8  Gal.  101. 

SEC.  134.  A  party  taking  a  check  after  its  presentation 
for  payment  to  the  bankers  upon  whom  it  is  drawn  and  its 
dishonor,  takes  it  subject  to  all  the  defenses  to  which  it 
was  subject  in  the  hands  of  the  original  holder.  10  Cat. 
523. 

SEC.  135.  A  executed  a  note  and  mortgage  to  B.  Sub 
sequently  A  and  B  entered  into  partnership  in  the  livery 
business.  A  was  to  furnish  the  stable,  hay  and  grain,  and 
board  B,  and  B  was  to  attend  the  stable,  the  profits  to  be 
equally  divided,  and  the  share  of  A  was  to  be  applied  in 
discharge  of  the  note.  B  received  the  sum  of  three  hun 
dred  and  ninety-six  dollars,  A's  share  of  the  profits  of  the 
business,  and  then,  after  maturity,  assigned  the  note  and 
mortgage  to  C.  C  brought  suit  against  A  for  the  whole 
amount.  A  plead  payment  and  set-off:  Held,  that  A  was 
entitled  to  the  credit  of  the  payment.  9  Cat.  294. 

SEC.  136.  This  is  an  action  to  recover  of  the  maker  and 
indorser  the  amount  of  a  certificate  of  deposit  for  eighteen 
hundred  dollars.  The  certificate  was  indorsed  by  the  payee, 
who  sold  and  transferred  the  same  to  one  Logan  for  the  con 
sideration  of  four  hundred  dollars.  Immediately  after  this 
sale  payment  was  demanded  of  the  maker,  and  a  notice  of 
protest  served  upon  the  indorser.  Subsequently  to  this, 
Logan  transferred  the  certificate  to  the  plaintiff.  The  ques 
tion  is,  whether  under  these  circumstances,  the  indorser  is 
liable  for  the  full  amount  of  the  certificate.  1  CaL  159. 
The  plaintiff  holds  the  certificate  subject  to  all  the  equities 
existing  between  the  indorser  and  Logan.  He  took  it  after 
maturity,  and  after  it  had  been  protested  for  non-payment, 
and  must  be  deemed  to  have  taken  it  with  full  knowledge  of 
these  equities.  Any  defense  which  the  indorser  could  avail 
himself  of  as  against  Logan,  he  is  entitled  to  as  against  the 
plaintiff.  As  between  him  and  Logan,  the  certificate  can 


342  JUSTICES'  TEEATISE. 

only  be  regarded  as  having  been  negotiated  in  the  course  of 
trade  to  the  amount  paid  as  a  consideration  for  the  transfer, 
and  his  liability  as  an  indorser  is  limited  to  that  amount. 
Of  course,  the  plaintiff  is  entitled  to  recover  of  the  maker 
the  full  amount  of  the  certificate.  There  is  no  principle  of 
law  better  settled  than  that  a  person  who  purchases  nego 
tiable  paper  after  it  has  been  dishonored  or  overdue,  takes 
it  subject  to  all  the  equities  which  properly  attach  thereto 
between  the  antecedent  parties.  See  Story  on  Promissory 
Notes,  Sec.  190,  and  authorities  there  cited.  It  is  also 
settled  by  a  uniform  current  of  authorities,  that  where 
the  consideration  passing  between  the  indorsee  and  his 
indorser  is  not  equal  to  the  amount  of  paper,  the  indorsee 
in  an  action  against  the  indorser  can  only  recover  the 
consideration  which  he  has  actually  paid.  Cook  vs.  Cock- 
rill,  1  Stew.  475;  Brown  vs.  Mott,  1  Johns.  360;..Z?ramcm 
vs.  Hess,  13  Johns.  52;  Munn  vs.  The  President,  etc.,  of 
the  Commission  Company,  15  Johns.  43;  Youse  vs.  McCreary, 
2  Blackf.  243.  Many  other  cases  are  cited  in  the  brief  of 
appellant's  counsel,  and  we  have  been  unable  to  find  a  sin 
gle  authority  which  establishes  a  different  doctrine.  .It  fol 
lows  that  the  judgment  of  the  court  below  must  be  reversed, 
and  the  cause  remanded  for  a  new  trial.  A  certificate  of 
deposit  for  one  thousand  eight  hundred  dollars,  payable  to 
the  order  of  V.  was  indorsed,  sold  and  delivered  by  Y.  to 
L.  for  four  hundred  dollars.  Payment  was  then  at  once  de 
manded  of  the  maker,  and  notice  of  protest  served  on  V. 
Subsequently,  L.  transferred  the  certificate  to  plaintiff:  Held, 
that  plaintiff  can  recover  of  V.  only  the  four  hundred  dol 
lars  received  by  him,  the  certificate  being  subject  in  the 
hands  of  plaintiff  to  all  the  equities  between  the  indorser 
and  indorsee.  Where  the  consideration  passing  between 
the  indorsee  and  his  indorser  is  not  equal  to  the  amount 
of  the  paper,  the  indorsee,  in  an  action  against  the  indorser, 
can  recover  only  the  consideration  he  has  actually  paid. 
Coyne  vs.  Palmer,  16  Cal.  160. 

SEC.  137.  Whoever  claims  unnegotiable  paper  must  do 
so  in  the  name  of  the  payee,  and  consequently,  the  defense 
of  payment  to  the  payee  would  be  valid  against  all  others. 
4  Cal.  39,  40. 


PROMISSOKY  NOTES,    BILLS   OP   EXCHANGE,    ETC.  343 

SEC.  138.  This  is  an  action  upon  a  note  and  mortgage 
for  three  thousand  dollars,  executed  by  the  defendants  to 
Lewis  Sloss  &  Co.,  and  assigned  to  the  plaintiff  after  matu 
rity.  The  defendant  McDonald  avers  in  his  answer,  that 
the  consideration  for  this  note  and  mortgage  was  received 
by  the  other  defendants,  and  that  he  executed  the  same  for 
their  benefit  and  accommodation.  He  further  avers  that 
the  assignment  to  the  plaintiff  was  a  fraud  upon  his  rights, 
and  that  the  consideration  for  the  assignment  was  paid, 
either  in  whole  or  in  part,  with  money  advanced  by  the 
other  defendants  for  that  purpose.  He  also  avers  that  he 
deposited  with  Sloss  &  Co.,  as  additional  security,  certain 
notes  or  "scrip,"  issued  by  the  Camp  Far  West  Water  and 
Mining  Company,  and  that,  prior  to  the  assignment  to  the 
plaintiff,  Sloss  &  Co.  converted  these  notes  to  their  use,  and 
refuse  to  account  for  them  in  any  manner  whatever.  The 
question  is  as  to  the  validity  of  these  defenses.  If  the 
averment  relative  to  the  consideration  for  the  assignment 
be  true,  the  amount  advanced  by  the  co-defendants  of  Mc 
Donald  should  be  entered  as  a  credit  upon  the  note  and 
mortgage,  and  the  recovery  limited  to  the  amount  actually 
paid  by  the  plaintiff.  If  the  defendants  paid  the  whole, 
such  payment  satisfied  and  discharged  the  debt,  and  the 
plaintiff  cannot  recover.  The  equities  of  the  parties  might 
be  different  if,  as  between  the  defendants,  McDonald  were 
liable  for  any  portion  of  the  indebtedness.  So  far  as  the 
notes  held  by  Sloss  &  Co.  as  additional  security  are  con 
cerned,  there  is  no  doubt  that  the  rights  of  McDonald  are 
the  same  that  they  would  be  in  an  action  prosecuted  by 
Sloss  &  Co.;  nor  is  there  any  doubt  that  in  such  an  action 
Sloss  &  Co.  could  be  compelled  to  account  for  the  value  of 
these  notes.  The  plaintiff  is  chargeable  with  notice  of  all 
the  equities  existing  between  the  original  parties,  and  he 
took  the  assignment  subject  to  these  equities.  It  would  be 
an  act  of  gross  injustice  to  compel  McDonald  to  pay  this 
debt,  and  turn  him  over  to  his  action  against  Sloss  &  Co. 
to  recover  the  value  of  the  securities.  He  is  entitled  to 
this  value  as  a  credit  upon  the  debt  for  which  the  securities 
were  pledged ;  and  even  if  it  should  turn  out  upon  the  trial 
that  the  notes  had  not  been  converted  as  charged  in  the 


344  JUSTICES'  TREATISE. 

answer,  it  would  still  be  unjust  to  compel  payment  with 
out  at  the  same  time  requiring  their  surrender.  17  Cal. 
290,  291. 

SEC.  139.  The  plaintiff  in  execution,  after  having  as 
signed  a  judgment,  pretended  falsely  and  fraudulently  to  be 
the  owner  of  it,  and  so  pretending  made  a  contract  to  dis 
charge  the  judgment  by  taking  a  note  not  negotiable,  in 
the  mercantile  sense,  in  payment ;  the  makers  of  the  note 
agreed  to  this  arrangement  under  the  notion  induced  by 
him  that  he  was  the  owner ;  they  afterwards  discovered  he 
was  not.  "When  they  did  so  ascertain,  they  refused  to  pay 
the  note  :  Held,  that  the  makers  of  the  note,  on  discovering 
that  the  plaintiff  was  not  the  owner  of  the  judgment, 
properly  refused  to  pay  the  note,  even  to  assignees  before 
maturity  thereof.  14  Cal.  661,  666. 

Defenses  by  Maker  against  Assignee. 

SEC.  140.  County  warrants  acquire  no  greater  validity  in 
the  hands  of  third  parties  than  they  originally  possessed  in 
the  hands  of  the  first  holder,  no  matter  for  what  considera 
tion  they  may  have  been  transferred,  or  in  what  faith  they 
may  have  been  taken.  If  illegal  when  issued  they  are 
illegal  for  all  time.  The  protection  which  attends  the  pur 
chaser  of  negotiable  paper  before  maturity,  without  notice 
of  the  illegality  of  its  consideration,  does  not  extend  to  like 
purchasers  of  county  warrants.  Were  this  otherwise,  it  is 
easy  to  see  that  the  county  would  be  entirely  at  the  mercy 
of  the  board.  A  transfer  of  the  warrant,  no  matter  how 
illegal  the  claim  for  which  it  was  issued,  would  leave  the 
county  remediless.  11  Cal.  175. 

Execution  of  Note,  How  Proved. 

SEC.  141.  The  execution  of  a  promissory  note,  signed 
with  an  x  or  mark,  may  be  proved  by  evidence  of  admis 
sions  of  the  alleged  signer,  in  the  absence  of  any  attesting 
witness.  22  Cal.  482.  In  an  action  upon  a  promissory 
note,  executed  by  Thompson  &  White,  and  purporting  to 
be  executed  by  the  appellant  by  his  mark,  the  defendant 
Alford  denied  under  oath  the  execution  of  the  note  by  him, 
and  that  was  the  only  issue.  The  case  was  tried  by  the 


PKOMISSOBY   NOTES,   BILLS  OF   EXCHANGE,   ETC.  345 

court,  a  jury  being  waived,  who  found  for  the  plaintiff,  and 
the  defendant,  Alford,  appeals  from  the  judgment  rendered 
thereon,  and  from  an  order  refusing  a  new  trial.  The  only 
error  assigned  is  that  the  finding  of  the  court  is  against  the 
law  and  evidence  ;  that  the  evidence  is  insufficient,  consid 
ering  its  character  and  all  the  circumstances,  to  prove  the 
execution  of  the  note  by  the  defendant.  We  have  carefully 
examined  the  evidence  and  are  satisfied  that  it  is  sufficient 
to  prove  the  fact  in  issue.  It  is  true  there  was  no  attesting 
witness  to  the  signature,  but  that  is  not  indispensable. 
The  execution  may  be  proved  by  competent  testimony  in 
the.  absence  of  an  attesting  witness.  George  vs.  Surrey,  1 
Moody  &  Malkin,  516.  And  even  when  there  is  a  sub 
scribing  witness  to  a  promissory  note,  it  has  been  held  that 
the  admissions  of  the  party  of  the  execution  of  the  note  is 
as  high  proof  as  that  derived  from  a  subscribing  witness. 
Hall  vs.  Phelps,  2  Johns.  451 ;  Mauri  vs.  Hefferman,  13 
Johns.  75.  So  it  is  held  that  the  declarations  of  the 
maker  of  a  note  may  be  resorted  to  to  prove  the  execution 
of  the  instrument,  whenever  proof  of  his  handwriting  can 
be  resorted  to.  2  Phillips'  Evidence,  C.,  H.  &  E.'s  Notes, 
501,  Note  441.  The  proof  in  this  case  consists  entirely  of 
the  admissions  of  the  defendant  made  to  the  plaintiff  and 
two  other  witnesses,  and  we  deem  them  sufficient  to  sustain 
the  findings  of  the  court.  22  Gal  483,  484. 

Notes  and  Bills  Executed  by  Agents. 

SEC.  142.  A  party  who  gives  his  power  of  attorney  to 
another  authorizing  the  latter  in  general  terms  ' '  to  manage 
and  transact  all  business  matters  of  every  nature  and  de 
scription  in  which  I  may  be  interested,"  and  "to  make, 
execute  and  deliver,  promissory  notes,  bills  or  bonds,"  will 
be  held  liable  for  all  such  securities  executed  in  his  name 
by  his  attorney  where  they  have  reached  the  hands  of  an 
innocent  holder,  although  they  may  have  been  made  for  the 
private  individual  purposes  of  his  attorney.  Where  one  of 
two  innocent  persons  must  suffer,  it  must  fall  on  him  who 
has  trusted  most.  6  Cal.  15. 

'  SEC.  143.     A  person  may  draw,  accept  or  indorse,  a  bill 
by  his  agent,   and  it  will  be  as  obligatory  upon  him  as 
44 


346  JUSTICES'  TREATISE. 

though  it  was  done  by  his  own  hand;  but  the  agent  in  such 
case  must  either  sign  the  name  of  the  principal  to  the  bill, 
or  it  must  appear  on  the  face  of  the  bill  itself  in  some  way  or 
other  that  it  was  in  fact  done  for  him,  or  the  principal  will 
not  be  bound ;  the  particular  form  of  the  execution  is  not 
material,  if  it  is  substantially  done  in  the  name  of  the 
principal.  7  Coil.  540.  If  it  can  upon  the  whole  instrument 
be  collected  that  the  true  object  and  intent  was  to  bind  the 
principal  and  not. merely  the  agent,  courts  will  adopt  that  con 
struction  of  it,  however  informally  it  may  be  expressed.  7 
Cal.  540.  Where  the  agent  discloses  the  name  of  the  prin 
cipal,  or  that  fact  is  otherwise  known  to  the  party  receiving 
the  bill  at  the  time  the  same  is  made,  then  the  agent  is  hot 
responsible,  though  the  name  of  the  principal  be  not  stated 
on  the  face  of  the  paper,  and  only  the  name  of  the  agent  be 
signed,  with  the  term  "agent"  appended  to  it.  "Where  a 
bill  of  exchange  was  headed  with  the  name  of  a  banking- 
office,  and  when  paid  was  to  be  charged  to  that  office,  and 
was  signed  by  a  person  as  agent :  Held,  that  the  agent  was 
not  personally  responsible  thereon  unless  it  could  be  shown 
that  he  was  guilty  of  deceit  in  drawing  the  bill  without 
authority.  7  Cal.  542. 

SEC.  144.  A  note  stating  that:  "We,  the  undersigned 
trustees  of  the  First  African  Methodist  Episcopal  Church, 
in  behalf  of  the  whole  board  of  trustees  of  said  association, 
promise  to  pay,"  etc.,  and  signed,  without  qualification,  by 
two  persons  having  authority,  is  the  note  of  the  church  and 
not  of  the  signers.  13  Cal.  45.  The  general  rule  which 
governs  in  such  cases  is,  that  although  a  party  acts,  in 
making  an  obligation  of  this  kind,  as  an  agent,  yet  he  does 
not  protect  himself  from  liability,  unless  the  instrument 
shows  that  in  executing  it  he  is  such  agent,  and  meant  only 
to  contract  for  his  principal.  13  Cal.  47. 

SEC.  145.  It  is  not  sufficient  to  charge  the  principal  or 
protect  the  agent  from  personal  responsibility  merely  to 
describe  himself  as  agent,  if  the  language  of  the  instrument 
imports  a  personal  contract  on  his  part.  But  where  the 
name  of  the  principal  appears  on  the  face  of  the  instrument 
or  contract,  and  it  is  evident  that  the  agent  did  not  intend 
to  bind  himself  personally,  but  acted  merely  on  behalf  of 


PKOMISSOKY  NOTES,    BILLS  OF  EXCHANGE,    ETC.  347 

the  principal,  if  he  acted  by  competent  authority,  the  prin 
cipal  and  not  the  agent  will  be  bound.  If  A  says:  "  On 
behalf  of  B,  and  for  value  received  by  him,  I,  A,  as  agent 
for  B,  promise  to  pay  C  one  hundred  dollars,"  it  would 
seem  that  this  is  the  note  of  B.  It  is  true,  A  makes  the 
note,  but  he  makes  it  on  behalf  of  B,  which,  especially  in 
connection  with  the  statement  of  the  consideration  passing 
or  having  passed  to  B,  would  imply  very  clearly  that  the 
note  was  signed  by  A  as  agent  of  B,  the  obligation  to  pay 
being  his.  13  Cal  48,  49. 

SEC.  146.  An  agent  signing  his  own  name  to  a  promis 
sory  note  made  on  behalf  of  his  principal  is  not  personally 
liable  as  a  maker  if  the  instrument  itself  discloses  the  inten 
tion  to  bind  his  principal  and  not  himself.  The  supreme 
court  say  :  "This  is  an  action  upon  a  promissory  note  in 
the  following  form  :  'Three  months  after  date  the  Ocean 
Mining  Company  promise  to  pay  TV.  G.  Bright  or  order 
one  thousand  dollars,  for  value  received,  with  interest  at 
the  rate  of  two  per  cent,  per  month.'  The  note  is  signed: 
'James  Harter,  trustee,  S.  N.  Stranahan,'  both  of  whom 
are  made  defendants  and  charged  as  makers  jointly  with 
the  company,  which  is  alleged  to  be  a  corporation.  No 
answer  being  filed  judgment  was  entered  against  all  the 
defendants,  and  from  this  judgment  Harter  and  Stranahan 
appeal.  The  complaint  alleges  that  the  note  was  executed 
by  Harter  and  Stranahan  as  well  as  by  the  company,  but 
the  note  itself,  a  copy  of  which  is  set  out  in  the  complaint, 
shows  it  was  not  their  intention  to  bind  themselves  person 
ally.  The  promise  stated  in  the  note  is  that  of  the  com 
pany,  and  by  failing  to  answer,  the  note  is  admitted  as  a 
company  obligation,  and  this  being  the  character  of  the 
instrument  as  appearing  upon  its  face,  we  regard  it  as 
binding  upon  the  company  alone.  It  is  evident  that  Har 
ter  and  Stranahan  signed  it  merely  as  agents,  and  as  a 
judgment  has  been  recovered  upon  it  against  the  company, 
their  authority  to  execute  it  cannot  be  questioned  ;  its  lan 
guage  shows  that  they  executed  it  for  the  company  and  not 
for  themselves.  The  law  governing  the  case  is  distinctly 
laid  down  in  Haskett  vs.  Cornish  (13  Cal.  45)."  21  Cal. 
45-47. 


348  JUSTICES'  TREATISE. 

Notes  Executed  by  Corporations. 

SEC.  147.  A  corporation  may  bind  itself  by  a  note  and 
mortgage,  made  by  its  president  and  secretary,  and  signed 
by  them  in  their  official  capacity  as  such.  10  Cal.  441. 

SEC.  148.  Where  the  answer  in  a  suit  against  a  corpora 
tion  on  its  own  note  relies  simply  on  the  want  of  power  of 
the  corporation  to  issue  notes,  the  defendant  cannot  after 
ward  object  that  the  plaintiff  has  not  shown  that  the  officers 
executing  the  note  were  empowered  by  the  corporation  to 
do  so.  6  Cal.  7. 

Executed  by  Infants. 

SEC.  149.  An  infant  may  make  or  indorse  a  promissory 
note  or  bill  of  exchange,  and  as  to  him  the  note  in  the  one 
case  and  the  indorsement  in  the  other  will  not  be  void  but 
voidable  at  his  election.  An  infant  may  execute  a  promis 
sory  note  by  agent.  Of  two  copartners  in  trade,  one  was 
an  infant  and  the  other  of  full  age  ;  the  adult,  for  a  debt  of 
the  copartners,  made  a  promissory  note  in  the  name  of  the 
firm,  and  the  infant,  after  coming  of  full  age,  ratified  it,  and 
it  was  holden  good  against  him.  An  infant  promisee  may, 
by  parol,  authorize  another  to  transfer  a  note  by  indorse 
ment  for  him,  and  the  transfer  so  made  will  be  held  valid 
until  avoided.  An  indorsee,  deriving  title  from  an  infant 
indorser,  acquires  a  good  and  valid  title  to  the  note  against 
every  other  party  thereto  except  the  infant,  since  the  title 
is  not  void  but  voidable  only.  The  infant  may,  indeed, 
at  any  time  before  ratifying  the  transfer,  intercept  payment 
to  the  indorsee,  or,  by  giving  notice  to  the  maker  of  his 
avoidance,  furnish  to  him  a  valid  defense  against  the  claim 
of  the  indorsee ;  but  until  he  does  so  avoid  it,  the  indorse 
ment  is  to  be  deemed,  in  respect  to  such  antecedent  par 
ties,  a  good  and  valid  transfer.  24  Cal.  208,  209. 

Executed  by  Partners. 

SEC.  150.  .  Where  one  partner  having  the  power  to  sign 
the  partnership  name  to  a  note,  uses  his  power  for  his  own 
purposes  and  in  fraud  of  his  partners,  the  parties  are  liable 
to  an  innocenfrholder.  6  Cal.  16. 

SEC.  151.     A  promissory  note  made  in  the  firm  name  of  a 


PROMISSORY  NOTES,   BILLS  OF  EXCHANGE,    ETC.  349 

partnership,  but  for  the  private  uses  of  the  partner  making 
it,  is  binding  on  the  firm,  in  the  hands  of  an  innocent 
holder,  though  not  in  the  hands  of  one  having  knowledge  of 
the  fraud.  6  Cat.  141. 

SEC.  152.  It  is  no  defense  to  a  note,  given  by  one  part 
ner  to  the  other,  for  his  interest  in  land  held  jointly  by  both, 
that  the  payee  of  the  note  had  deceived  his  partner,  the 
maker,  in  the  division  of  partnership  stock,  and  was  indebt 
ed  therefor  in  an  amount  equal  to  or  greater  than  the  sum 
due  on  the  note.  As  such  division  has  nothing  to  do  with 
•the  consideration  of  the  note,  it  cannot  be  set  up  as  a  coun 
ter-claim  or  defense  to  the  action  on  the  note.  6  Cal.  276. 

Executed  Trustees,   Guardians. 

SEC.  153.  As  to  trustees,  guardians,  executors  and  ad 
ministrators  and  other  persons,  acting  en  outre  droit,  they 
are,  by  law,  generally  held  personally  liable  on  promissory 
notes,  because  they  have  no  authority  to  bind,  ex  directo,  the 
persons  for  whom,  or  for  whose  benefit  or  for  whose  estate, 
they  act,  and  hence,  to  give  any  validity  to  the  note,  they 
must  be  deemed  personally  bound  as  makers.  It  is  true, 
that  they  may  exempt  themselves  from  personal  responsibil 
ity,  by  using  clear  and  explicit  words  to  show  that  intention ; 
but,  in  the  absence  of  such  words,  the  law  will  hold  them 
bound.  Thus,  if  an  executor  or  administrator  should  make 
or  indorse  a  note  in  his  own  name,  adding  thereto  the  words 
"as  executor,"  or,  "as  administrator,"  he  would  be  person 
ally  responsible  thereon.  If  he  means  to  limit  his  respon 
sibility,  he  should  confine  his  stipulation  to  pay  out  of  the 
estate.  Where  a  party  signs  a  promissory  note,  with  the 
addition  to  his  name  of  the  word  "trustee, "he is  personally 
liable,  nor  can  evidence  be  admitted  to  show  that  at  the 
time  of  the  execution  of  the  note  there  was  a  parol  agree 
ment  that  he  should  not  be  personally  liable,  but  the  note 
was  to  be  paid  out  of  a  trust  fund.  The  rule  is,  that  the 
written  contract  is  considered  the  definitive  agreement  of 
the  parties,  and  paroi  conversations  and  understandings  are 
all  merged  in  it.  It  is  the  only  authentic  evidence  of  the 
understanding  of  the  parties.  Nor  will  it  do  to  say  that  the 
evidence  is  admissible,  as  showing  a  want  of  consideration 


350  JUSTICES'  TREATISE. 

for  the  note.  It  does  not  tend  to  prove  that  there  was  no 
such  consideration  as  is  acknowledged  by  the  terms  of  the 
note,  but  there  was  no  such  contract  as  that  alleged.  It  is 
at  last,  the  common  case  of  an  attempt  to  contradict  the 
terms  of  a  written  contract  by  parol.  12  Col.  168-171. 

Executed  by  Wife. 

SEC.  154.  A  married  woman  has  no  power  to  sign  in  her 
own  name  a  promissory  note,  and  execute  a  mortgage  to 
secure  its  payment.  5  Col.  458. 

SEC.  155.  "Where  the  complaint  avers  that  the  note  and" 
mortgage  sued  on  were  made  to  E.,  a  married  woman,  and 
by  her  assigned  to  plaintiff,  he  cannot  recover,  because  the 
right  to  assign  was  in  the  husband;  and  this,  too,  where  the 
proof  was  that  both  husband  and  wife  assigned  the  note  and 
mortgage.  In  chancery  cases,  the  party  must  recover  ac 
cording  to  the  pleadings,  and  not  the  proof,  where  there 
is  a  variance.  13  Cat.  490. 

SEC.  156.  Pr-ima  facie,  property  conveyed  to  or  ac 
quired  by  either  spouse  during  the  coverture, 'under  our 
system,  is  common  property,  and  the  control  and  disposi 
tion  of  this  common  property  is  given  by  statute  to  the 
husband.  The  wife  has  no  right  to  dispose  of  it.  At  com 
mon  law,  a  note  made  payable  to  the  wife,  would,  prima 
facie,  be  the  property  of  the  husband,  who  could  indorse  it 
in  his  own  name.  Probably,  the  indorsement  of  the  wife 
was  not  necessary,  but  it  did  not  hurt  or  make  less  effectual 
the  indorsement  of  the  husband.  A  party  dealing  with  a 
femme  is  bound  to  inquire  into  her  rights  and  powers.  She 
or  he  is  no  more  estopped  by  the  fact  that  the  papers  are 
drawn  directly  to  her  than  she  or  he  would  be  bound  to  give 
effect  to  her  sole  deed  if  she  were  named  as  grantee  in  a 
conveyance  of  real  estate.  The  case  might  be  different  if  the 
husband  expressly  represented  the  wife  to  be  a  femme  sole, 
and  with  authority  to  deal  as  such  with  the  common  prop 
erty,  or  assented  to  the  transfer  by  her;  but  the  fact  that  a 
note  or  mortgage  is  executed  to  her  is  not  conclusive  proof 
of  any  such  representation,  for  this  is  consistent  with  the 
right  or  title  of  the  husband.  13  Col.  493. 

SEC.  157.     The  following  is  a  form  of  promissory  note: 


PROMISSORY  NOTES,    BELLS  OF  EXCHANGE,    ETC.  351 

Promissory  Note. 

, ,  18.. 

after  date,  without  grace,  ....  promise  to  pay,  in  gold  coin  of 

the  United  States  of  America,  to or  order,  the  sum  of 

dollars,  with  interest  thereon  at  the  rate  of per  cent,  per  month,  from 

date  [or,  "from  maturity"]  until  paid.     Value  received. 


SEC.  158.     The  following  is  a  form  of  promissory  note 
payable  at  a  bank  or  other  particular  place : 

Promissory  Note  Payable  at  a  Bank  or  other  Particular  Place. 

$  ....  , ,  18.. 

days  after  date,  for  value  received,  I  promise  to  pay  to  the  order  of 

,  at  the  banking  house  of , dollars,  gold  coin  of 

the  United  States  of 'America. 


SEC.  159.     The  following  is  a  form  of  promissory  note 
payable  by  installments : 

Promissory  Note  Payable  by  Installments. 

•$..-.  ,18.. 

For  value  received,  I  promise  to  pay,  in  gold  coin  of  the  United  States  of 

America,  to  the  order  of ,  .* dollars,  in  . .,  .  months  from 

date,  and dollars  in  ....  months  from  date,  and dollars 

in  ....  years  from  date,  said  respective  sums  to  bear  interest  from  date  at 
the  rate  of  ....  per  cent,  per  month  until  paid.  

SEC.  160.     The  following  is  a  form  of  promissory  note, 
joint  and  several : 

Promissory  Note,  Joint  and  Several. 

*..-.  , ,18.. 

days  from  date,  for  value  received,  we,  or  either  of  us,  promise  to  pay 

or  bearer  [or,  "order"],  in  gold  coin  of  the  United  States  of  Amer 
ica,  dollars,  with  interest  irom  date  at  the  rate  of  ....  per  cent. 

per  month  until  paid.  


SEC.  161.     The  following  is  a  form  of  promissory  note 
not  negotiable: 

Promissory  Note  not  Negotiable. 

*••••  , ,18... 

....  days  from  date,  I  promise  to  pay  to ,  in  gold  coin  of  the 


352  JUSTICES'  TREATISE. 

United  States  of  America, dollars,  with  interest  from  ....  at  the 

rate  of  ....  per  cent,  per  month  until  paid. 


SEC.  162.     The  following  is  a  form  of  memorandum  note 
of  money  deposited : 

Memorandum  Note  of  Money  Deposited. 

$  ....  , ,  18.. 

Deposited  in  the  bank  of by ,  president  of  the  bank  of  . . . . , 

in  gold  coin  of  the  United  States,  ....  thousand  dollars,  to  be  paid  by  said 
bank  of  ....  to  the  order  of  said  bank  of  . . . . ,  in  like  coin,  when  and  in  such 
amounts  as  may  be  demanded. 
,  Teller.  ,  Cashier. 

SEC.  163.     The  following  is.  a  form  of  certificate  of  de 
posit  : 


Certificate  of  Deposit. 

No. 

Bank, 

.,  IS..' 


has  deposited  in  this  bank dollars,  in  United  States 

gold  coin,  payable  in  like  coin  to or  order,  on  return  of  this  cer 
tificate  properly  indorsed. 
,  Teller.  ,  Cashier. 

SEC.  164.  A  check  is,  as  has  been  .shown,  a  written 
order  or  request,  addressed  to  a  bank  or  banker  or  other 
person,  by  a 'person  having  money  deposited,  requesting 
the  payment,  on  presentment,  of  a  certain  sum  of  money  to 
a  person  therein  named  or  to  his  order,  or  to  bearer.  The 
following  rules  in  reference  to  checks  enunciated  by  the 
supreme  court  of  California,  as  well  as  of  other  states, 
found  in  this  chapter,  may  be  recapitulated  with  advant 
age,  as  follows: 

1st.  .When  drawn  payable  to  a  person  or  bearer,  it  is 
transferable  without  indorsement,  and  the  holder  is  entitled 
to  payment. 

2d.  When  drawn  payable  to  a  person  or  his  order,  it  must 
be  indorsed  by  the  person  to  whom  the  check  is  made  pay 
able. 

3d.  When  made  payable  to  a  person  without  the  words, 
"or  order"  or  "bearer,"  or  to  a  particular  person  "only," 
it  is  not  negotiable. 


PROMISSORY  NOTES,   BELLS  OF  EXCHANGE,   ETC.  353 

4th.  As  checks  made  payable  to  a  person's  order  compel 
the  payee  to  indorse  them,  they  are,  when  drawn  in  this 
form,  often  used  in  lieu  of  receipts. 

5th.  The  drawer  of  a  check  may  countermand  its  payment 
at  any  time  previous  to  its  payment  or  acceptance  by  the 
bank. 

6th.  A  check  received  from  others  should  be  presented 
without  unnecessary  delay,  as  the  drawer  will  not  otherwise 
be  responsible  for  its  payment  in  case  of  the  failure  of  the 
bank. 

7th.  Every  holder  of  a  check  is  liable  to  every  subsequent 
holder,  only  for  the  time  for  which  he  would  be  held  if  orig 
inally  liable. 

8th.  A  post-dated  check  is  payable  on  the  day  of  its  date; 
but  it  is  preferable  to  draw  a  check  payable  in  the  future; 
to  date  it  on  the  day  on  which  it  is  drawn  and  state  in  the 
body  of  the  check  the  day  when  it  is  to  be  paid. 

9th.  When  made  payable  on  a  future  day  and  not  on  the 
day  of  its  date,  they  have  been,  and  usually  are,  treated  as 
bills  of  exchange,  and  as  such  are  entitled  to  days  of  grace. 

SEC.  165.  The  following  is  a  form  of  check  payable  at  a 
future  day: 

Form  of  Check  Payable  at  a  Future  Day. 

, ,18-. 

To  the bank, 

Pay  to  the  order  of dollars,  on  the  ....  instant,  with 
out  grace.  Acceptance  waived,  

$  .... 

[If  acceptance  be  not  waived,  the  payee  should  present  the  check  at  the 
bank,  and  cause  the  teller  [or,  other  proper  officer]  to  write  across  the  face 
of  the  check  the  words:  "  good  when  properly  indorsed,"  and  sign  his  name 
officially.  ] 

SEC.  165.  The  following  a  form  of  promissory  note  with 
collateral  security : 

Promissory  Note  with  Collateral  Security. 

$  .... ,  18.. 

after  date,  without  grace,  ....  promise  to  pay,  in  gold  coin  of 

the  United  States  of  America,  to  the  order  of ,  at  their  bank 
ing  house  in  ....  city,  the  sum  of dollars,  with  interest  thereon 

from  date  until  paid  at  the  rate  of  ....  per  cent,  per  month,  the  interest  pay- 

45 


354  JUSTICES'  TREATISE. 

able  monthly  in  advance,  and  if  not  so  paid  to  be  compounded-  and  become 
a  part  of  the  principal,  and  bear  thereafter  the  same  rate  of  interest,  for 
value  received. 
Due  ,18.. 


As  collateral  security  for  the  payment  of  the  above  note  and  the  interest  to 

grow  due  thereon,  ....  have  deposited  with the  following 

personal  property,  to  wit: 

And  should  the  said  note  or  any  part  thereof  or  the  interest  to  grow  due 
thereon,  remain  due  and  unpaid,  after  the  same  should  have  been  paid,  ac 
cording  to  the  tenor  of  %aid  note,  ....  hereby  irrevocably  authorize  and  em 
power  or  their  heirs,  executors,  administrators  or  assigns,  to 

sell  and  dispose  of  the  above-mentioned  personal  property  or  any  part  there 
of,  at  public  or  private  sale,  without  any  previous  notice  to  ....  of  such  sale 
[or,  after  advertising  the  same  ....  days  in  the  ....],  and  from  the  proceeds 
arising  therefrom  to  pay  the  principal  and  interest  and  all  charges  that  shall 
be  then  due  and  the  costs  of  sale,  and  the  balance,  if  any,  to  pay  over  to 

or  ....  representatives  upon  demand.  In  case  of  deterioration  of 

any  of  the  above  securities,  or  fall  in  the  market  value  of  the  same,  .... 
hereby  promise  and  agree  to  reduce  the  amount  of  debt  or  to  increase  the 
security  in  proportion  to  such  deterioration  or  decrease  of  value,  in  default 
of  which  this  note  is  to  be  considered  due  under  the  above  stipulation.  On 
the  payment  of  the  above  note  and  interest,  according  to  the  terms  of  the 
former  and  all  charges,  this  agreement  is  to  be  void  and  the  above-named 
securities  to  be  returned  to  . . 


CHAPTER     XXXIII. 
CALLING    OF    CAUSE. 


THE  KULE  WHEN  A  PARTICULAR 
HOUR  IS  STATED .  .  . 


WHEN  CAUSE  TO  BE  CALLED  . . . 
AFTER  ONE  HOUR'S  DELAY  JUS 
TICE  MAY   PROCEED   TO  GIVE 

JUDGMENT 

When  CafUse  to  be  Called. 

SECTION  1.  The  justice  should  wait  an  hour  after  a  sum 
mons  is  returnable  before  proceeding  to  swear  witnesses  in 
the  cause.  9  Barb.  60. 

SEC.  2.  Where,  after  issue  joined,  in  a  justice's  court, 
the  cause  was  adjourned  to  another  day,  and  the  justice 
waited  a  full  hour  after  the  time  appointed  for  the  appear 
ance  of  the  parties,  it  was  held,  that  this  was  a  reasonable 


CERTIORAEI.  355 

delay,  and  that  he  might  proceed  to  call  the  parties  and 
give  judgment  against  the  one  who  neglected  to  appear. 
20  Johns.  309. 

SEC.  3.  So  where  a  cause  is  held  open  to  a  particular 
hour  on  a  subsequent  day,  the  justice  should  wait  an  hour 
after  the  time  specified  for  the  parties  to  appear ;  and  it  is 
erroneous  for  him  to  call  the  cause  in  the  absence  of  one  of 
the  parties,  and  proceed  to  the  hearing  thereof  before  the 
expiration  of  that  time.  3  Barb.  372. 


CHAPTER    XXXIV. 

CEKTIOEAEI. 

SECTION  1.  At  common  law  the  writ  of  certiorari  has 
nothing  but  the  jurisdiction,  and,  incidentally,  the  regularity 
of  the  proceedings  upon  which  the  jurisdiction  depends. 
The  review  never  extends  to  the  merits ;  upon  these  the 
action  of  the  inferior  tribunal  is  final  and  conclusive.  Our 
statute  is  affirmatory  of  the  common  law.  In  this  last  re 
spect  (6  Cal.  679)  In  the  Matter  of  The  People  ex  rel.  Church 
vs.  Hester,  is  overruled.  The  return  of  the  court  below 
should,  when  necessary  to  determine  a  jurisdictional  fact, 
exhibit  every  issue  of  law  and  fact  involved  in  the  question 
of  jurisdiction  and  the  evidence,  as  well  as  the  record. 
Whitney  vs.  Board  of  Delegates  S.  F.  Fire  Department,  14 
Cal.  479. 

SEC.  2.  On  a  writ  of  certiorari  it  is  the  duty  of  the  jus 
tice  to  make  his  return  of  the  testimony  from  his  minutes 
and  his  best  recollection.  4  Wls.  219. 

SEC.  3.  Where  a  justice,  after  having  signed  a  return  to  a 
certiorari,  made  a  supplementary  return,  and  then  made 
another  return  declaring  the  supplementary  return  incor 
rect,  the  court  refused  to  receive  the  supplementary  returns, 
and  expressed  their  strong  disapprobation  of  the  practice 
of  preparing  returns  to  certiorari  for  justices,  without  their 
request,  especially  by  the  party  applying  or  his  attorney. 
7  Johns.  548. 

SEC.  4.     It  is  not  sufficient  for  the  justice  to  return  to  a 


356  JUSTICES'  TKEATISE. 

writ  of  certiorari  that  the  defendant  in  certiorari  being  sat 
isfied  that  the  judgment  was  erroneous,  has  discharged  the 
same  and  paid  costs ;  he  must  return  all  the  proceedings 
had  before  himself.  3  Wis.  297. 

SEC.  5.  A  certiorari  to  a  justice's  court  is  a  new  suit,  and 
not  the  continuation  of  an  old  one,  therefore  the  covenant 
of  the  surety  for  a  non-resident  plaintiff,  on  suing  out  a 
summons,  to  pay  any  sum  that  may  be  adjudged  against  the 
plaintiff  in  that  suit  does  not  extend  to  the  costs  of  a  rever 
sal  on  certiorari  of  the  judgment  recovered  by  the  plaintiff, 
before  the  justice,  in  the  suit  commenced  by  the  summons. 
4  Denio,  84. 

SEC.  6.  A  justice's  judgment  for  the  plaintiff,  on  an 
action  for  goods  sold  and  delivered,  will  be  held  good  on 
certiorari,  where  the  return  shows  that  the  defendant  did 
not  appear,  although  the  return  does  not  state  that  the 
justice  waited  one  hour  before  proceeding  with  the  cause, 
and  the  declaration  does  not  show  a  venue,  a  precise  state 
ment  of  the  cause  of  action  and  a  formal  promise  to  pay. 
4  Denio,  182. 


CHAPTER     XXXV. 

CHATTEL     MO  BT  GAGES. 

SECTION  1.  Chattel  mortgages  may  be  made  on  the  fol 
lowing  property  to  secure  the  payment  of  just  indebtedness : 
Upholstery  and  furniture  used  in  hotels  and  public  board 
ing-houses,  when  mortgaged  to  secure  the  purchase  money 
of  the  identical  articles  mortgaged,  and  not  otherwise  ;  saw 
mill,  grist  mill,  and  steamboat  machinery,  tools  and  ma 
chinery  used  by  machinists,  foundrymen,  and  other  me 
chanics;  steam  boilers,  steam  engines,  locomotives,  engines 
and  the  rolling  stock  of  railroads,  printing  presses  and 
other  printing  material,  instruments  and  chests  of  a  sur 
geon,  physician  or  dentist,  libraries  of  all  persons,  machin 
ery  and  apparatus  for  mining  purposes.  No  mortgage 
made  by  virtue  of  this  act  shall  have  any  legal  force  or  effect 
(except  between  the  parties  thereto)  unless  the  residence  of 


CHATTEL  MORTGAGES.  357 

the  mortgagor  and  mortgagee,  their  profession,  trade  or 
occupation,  the  sum  to  be  secured,  the  rate  of  interest  to 
be  paid,  when  and  where  payable,  shall  be  set  onf  in  the 
mortgage,  and  the  mortgagor  and  mortgagee  shall  make 
affidavit  that  the  mortgage  is  bona  fide,  and  made  without 
any  design  to  defraud  or  delay  creditors,  which  affidavit 
shall  be  attached  to  such  mortgage.  Gen.  Laws,  498. 

SEC.  2.  The  seventeenth  section  of  an  act  entitled  "An 
act  concerning  fraudulent  conveyances  and  contracts, "pass 
ed  April  nineteenth,  one  thousand  eight  hundred  and  fifty, 
in  so  far  as  the  same  conflicts  with  the  provisions  of  this 
act,  is  hereby  repealed.  Gen.  Laws,  499. 

SEC.  3.  All  mortgages  made  in  pursuance  of  this  act 
(with  the  affidavit  attached),  shall  be  recorded  in  the  county 
where  the  mortgagor  lives,  and  also  in  the  county  or  coun 
ties  where  the  property  is  located  or  used :  provided,  that 
property  in  transit u  from  the  possession  of  the  mortgagee 
to  the  county  of  the  residence  of  the  mortgagor,  or  to  a 
location  for  use,  shall,  during  a  reasonable  time  for  such 
transportation,  be  considered  as  located.  It  shall  be  the 
duty  of  the  county  recorders  of  this  state  to  provide  proper 
books  of  record  and  of  index,  in  which  they  shall  make  a 
true  copy  or  record  of  all  mortgages  made  in  pursuance  of 
the  provisions  of  this  act,  and  left  with  them  for  record, 
and  they  shall  enter,  in  alphabetical  order,  the  names  of 
the  mortgagee  and  mortgagor  in  such  index  books.  The 
recorder  shall  note  on  the  mortgages  and  in  the  index 
books  the  time  (in  like  manner  as  mortgages  on  real  estate) 
when  the  same  was  received  into  the  office  for  record,  and 
the  recording  shall  take  effect  from  that  time.  The  record 
er's  fees  for  recording  and  indexing  shall  be  the  same  as  are 
allowed  him  by  law  for  like  services  for  recording  deeds  of 
real  estate,  to  be  paid  in  advance  by  the  person  presenting 
the  same  for  record.  Gen.  Laws,  500. 

SEC.  4.  No  chattel  mortgage  shall  be  valid  (except  be 
tween  the  parties  thereto),  unless  the  same  shall  have  been 
made,  executed  and  recorded,  in  conformity  to  -the  provi 
sions  of  this  act :  provided,  however,  if  the  mortgagee  re 
ceives  and  retains  the  actual  possession  of  the  property 
mortgaged,  he  may  omit  the  recording  of  his  mortgage 


358  JUSTICES'  TREATISE. 

during  the  continuance  of    such  actual  possession.     Gen. 
Laivs,  501. 

SEC.*5.  A  right  of  redemption  shall  remain  in  the  mort 
gagor  until  the  same  shall  have  been  foreclosed  by  due 
process  of  law,  or  by  agreement  between  the  parties  to  the 
mortgage,  which  agreement  shall  be  entered  on  the  record 
of  the  mortgage,  and  for  the  entering  of  which  the  recorder 
shall  be  entitled  to  the  same  rate  of  fees  as  for  recording 
the  original,  to  be  paid  in  advance  by  the  parties  to  the 
mortgage.  Gen.  Laws,  502.  • 

SEC.  6.  1st.  All  property  mortgaged  in  pursuance  to  the 
provisions  of  this  act  may  be  attached  at  the  suit  of  the 
creditors  of  the  mortgagor  or  mortgagee.  When  attached 
at  the  suit  of  the  creditor  of  the  mortgagor,  such  creditor 
shall  pay,  or  tender  to  the  mortgagee,  the  actual  amount 
due  him  on  such  mortgage  before  the  officer  making  such 
attachment  shall  be  entitled  to  the  actual  possession  of 
such  property.  When  property  thus  situated  and  thus 
redeemed  shall  have  been  sold  by  the  officer  by  virtue 
of  due  legal  proceedings,  out  of  the  proceeds  of  the  sale 
he  shall  first  pay  to  the  creditor  the  amount  advanced  by 
him  to  pay  the  mortgagee  with  legal  interest  thereon. 

2d.  Pay  all  legal  costs  and  fees  appertaining  to  the  judg 
ment,  execution  and  sale. 

3d.  Pay  the  judgment  creditor  the  amount  of  the  judg 
ment,  and  any  remaining  surplus  pay  to  the  judgment 
debtor.  If  the  creditor  of  the  mortgagor  prefers,  he  may 
cause  to  be  attached  the  right  of  redemption  of  said  mort 
gagor  and  cause  the  same  to  be  sold,  subject  to  the  rights 
of  the  mortgagee.  Such  attachment  shall  be  made  by  leav 
ing  a  copy  of  the  writ  of  attachment,  with  notice  of  the 
attachment,  with  the  mortgagee.  When  the  sale  of  such , 
equity  is  made  on  an  execution  obtained  by  such  attaching 
creditor,  the  sum  realized  shall  be  applied  to  the  payment 
of  costs,  fees,  discharge  of  the  execution  and  any  remain 
der  paid  to  the  judgment  debtor.  When  the  interest  of  the 
mortgagee  shall  be  attached,  a  copy  of  the  writ  of  attach 
ment  shall  be  left  with  the  mortgagor  with  notice  of  the 
attachment,  and  any  payment  made  by  him  to  the  mort 
gagee  after  such  notice  shall  not  release  the  attachment  or 


CHATTEL  MORTGAGES.  359 

affect  the  rights  of  the  attaching  creditor,  but  said  mortga 
gor  may  pay  the  amount  due  on  said  mortgage  to  the  officer 
who  made  the  attachment,  and  thereupon  said  officer  shall 
release  said  attachment  and  hold  the  money  so  paid  him, 
in  the  same  manner  as  if  he  had  originally  attached  said 
money.  Gen.  Laws,  503. 

SEC.  7.  This  act  shall  not  be  so  construed  as  to  inter 
fere  or  conflict  with  the  lawful  mining  rules,  regulations 
or  customs,  in  regard  to  the  locating,  holding  or  forfeiture, 
of  claims,  but  in  all  cases  of  mortgages  of  mining  interests 
under  this  act  the  mortgagee  shall  have -the  right  to  per 
form  the  same  acts  that  the  mortgagor  might  have  per 
formed  for  the  purpose  of  preventing  a  forfeiture  of  the 
same  under  the  said  rules,  regulations  or  customs,  of  mines, 
and  shall  be  allowed  such  compensation  therefor  as  shall 
be  deemed  just  and  equitable  by  the  court  ordering  a  sale 
upon  a  foreclosure  :  provided,  that  such  compensation  shall 
in  no  case  exceed  the  amount  realized  from  the  claim  by  a 
foreclosure  and  sale.  Gen.  Laws,  504. 

SEC.  8.  The  mortgagee  in  all  mortgages  made  under  this 
act  shall  be  allowed  one  day  for  every  twenty  miles  of  the 
distance  between  his  residence  and  the  county  recorder's 
office,  where  such  mortgage  ought  by  law  to  be  recorded, 
to  conform  to  the  provisions  of  this  act,  before  any  attach 
ment  shall  be  valid  made  by  the  creditors  of  the  mortgagor. 
Gen.  Laws,  505. 

SEC.  9.  Section  eight  of  the  act,  approved  April  29th, 
1857,  entitled  "An  act  amendatory  of -and  supplemental  to 
an  act  in  relation  to  personal  mortgages  in  certain  cases," 
passed  May  llth,  A.D.  1853,  is  hereby  repealed.  Nothing 
contained  in  said  act  or  in  the  act  of  which  said  act  is 
amendatory  shall  be  construed  to  apply  to  or  shall  affect 
in  any  manner  any  bill  of  sale,  'mortgage,  hypothecation  or 
conveyance,  of  any  vessel  or  part  of  any  vessel  which  is  or 
shall  be  duly  recorded  in  the  office  of  the  collector  of  cus 
toms  of  the  place  where  such  vessel  is  registered  or  en 
rolled  pursuant  to  the  laws  of  the  United  States.  Pub. 
Laws,  1868. 

SEC.  10.  If  the  property  is  not  such  as  could  be  mort 
gaged  under  the  provisions  of  the  chattel  mortgage  act, 


360  JUSTICES'  TREATISE. 

and  the  mortgage  is  not  executed  with  reference  to  that 
act,  its  effect  is  to  be  determined  by  the  rules  of  the  com 
mon  law ;  and  it  is  a  well-settled  rule  of  that  law,  that  a 
mortgage  of  personal  property  entitles  the  mortgagee  to 
the  possession.  20  Cal.  617,  618. 

SEC.  11.  A  mortgage  of  chattels,  the  possession  remain 
ing  in  the  mortgagor,  is  good  against  all  persons  except 
subsequent  purchasers  and  bona  fide,  creditors.  The  title 
vests  in  the  mortgagee,  subject  to  be  divested  on  compli 
ance  with  the  conditions.  14  Cal.  85.' 

SEC.  12.  A  chattel  mortgage,  under  the  act  of  1857  and 
the  amendment  of  1861,  is  of  no  validity  except  between 
the  parties  thereto,  unless  the  provisions  of  the  act  are 
strictly  complied  with.  Gassner  vs.  Patterson,  23  Cal.  299. 

SEC.  13.  A  sale  of  personal  property,  made  to  secure  the 
indebtedness  of  the  vendor  to  the  vendee,  makes  the  trans 
action  a  mortgage.  Moore  vs.  Murdoch,  26  Cal.  514. 

SEC.  14.  Hotel  Furniture. — To  render  a  chattel  mortgage, 
given  to  secure  the  purchase  money  of  furniture  and  up 
holstery  for  a  hotel  or  boarding-house  valid,  it  must  appear 
that  the  furniture  and  upholstery  were  actually  used  in  a 
hotel  or  boarding-house.  Stringer  vs.  Davis,  30  Cal.  318. 

SEC.  15.  .  A  mortgage  on  growing  crops  executed,  ac 
knowledged  and  recorded,  like  mortgages  on  real  estate,  is 
valid  as  against  third  parties,  without  delivery  of  posses 
sion  of  the  property  mortgaged.  Quiriaque  vs;  Dennis,  24 
Cal.  154. 

SEC.  16.  The  lien  of  such  a  mortgage  ceases  as  against 
subsequent  purchasers  after  the  crop  is  harvested,  unless 
when  harvested  it  is  delivered  to  the  mortgagee.  24  Cal. 
154. 

SEC.  17.  A  mortgagee  may  sell  the  property  mortgaged 
upon  reasonable  notice  to  the  mortgagor  of  the  time  and 
place  of  sale  after  conditions  broken.  Wilson  vs.  Brannan, 
27  Cal.  258. 

SEC.  18.  Redemption  by  Mortgagor. — The  mortgagor  may 
redeem  the  property  at  any  time  before  foreclosure  or  by 
sale  at  auction.  27  Cal.  258. 

SEC.  19.     The  following  is  a  form  of  chattel  mortgage  : 


CHATTEL   MORTGAGES.        •  361 

Chattel  Mortgage.  . 

This  indenture,  made  the  ....  day  of  . . . . ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  . . . . ,  between ,  residing  at  .  . . . ,  in 

the  county  of  . . . . ,  state  of  . . . . ,  and  by  profession,  trade  or  occupation,  a 

. . . . ,  the  party  of  the  first  part,  and ,  and  residing  at  ...'.,  county 

of  . . . . ,  state  of  . . . . ,  and  by  profession,  trade  or  occupation,  a  . . . . ,  the 
party  of  the  second  part,  witnesseth,  that  the  said  party  of  the  first  part,  for 
and  in  consideration  of  the  sum  of  ....  dollars,  ....  of  the  United  States,  to 
. . . .,  in  hand  paid  by  the  said  party  of  the  second  part,  the 'receipt  whereof 
is  hereby  acknowledged,  has  granted,  bargained,  sold,  assigned,  transferred 
and  set  over,  and  by  these  presents  does  grant,  bargain,  sell,  assign,  transfer 
and  set  over,  unto  the  said  party  of  the  second  part,  all  those  certain  goods 
and  chattels,  now  being  in  . . . . ,  state  of,  and  described  as  follows,  to  wit : 
[here  give  description  of  goods  or  chattels]. 

To  have  and  to  hold,  all  and  singular  the  said  good  and  chattels  above 
bargained  and  sold,  or  intended  so  to  be,  unto  the  said  party  of  the  second 
part,  ....  executors,  administrators  and  assigns,  forever :  provided,  never 
theless,  and  these  presents  are  upon  this  express  condition,  that  if  the  said 
party  of  the  first  part,  ....  executors,  administrators  or  assigns,  shall  well 
and  truly  pay  unto  the  party  of  the  second  part,  ....  executors,  administra 
tors  or  assigns,  the  sum  of  ....  dollars  ....  of  the  United  States,  on  the 

day  of A.D.  18 . . ,  at  the  ....  of  . . . . ,  in  the  . . . . ,  county  of  . . . . ,  state 

of and  shall  further  pay  in  ....  of  the  United  States,  unto  the  said 

party  of  the  second  part,  ....  executors,  administrators  or  assigns',  interest 
upon  the  said  principal  sum  at  and  after  this  date,  at  the  rate  of  ....  per 

cent,  per  . . . . ,  on  the  ....  day  of  . . . . ,  at  said  . . . . ,  of ,  in  the  said  .... 

county  of  . . . . ,  then  these  presents  shall  be  void.  But  in  case  default 
shall  be  made  in  the  payment  of  the  said  principal  sum,  or  any  one  of  the 
said  installments  or  interest,  then  it  shall  and  may  be  lawful  for  and  the 
said  party  of  the  first  part  does  hereby  authorize  and  empower  the  said  party 

of  the  second  part, executors,  administrators  or  assigns,  with  the  aid 

and  assistance  of  any  person  or  persons,  to  enter  ....  dwelling-house,  .... 
store  and  other  premises,  and  such  other  place  or  places,  as  the  said  goods 
or  chattels  are  or  may  be  placed,  and  take  and  carry  away  the  said  goods  and 
chattels,  and  sell  and  dispose  of  the  same,  for  the  best  price  they  can  obtain, 
by  due  process  of  law,  or  by  agreement  between  the  parties  to  this  mortgage, 
their  executors,  administrators  or  assigns,  which  agreement  shall  be  entered 
on  the  record  of  the  mortgage,  and  out  of  the  money  arising  therefrom,  to 
retain  and  pay  the  said  sum  above-mentioned,  and  interest  as  aforesaid,  and 
all  charges  touching  the  same,  and  counsel  fees  not  to  exceed  ....  per  cent, 
upon  the  full  amount  which  shall  then  be  due,  rendering  the  overplus,  if  any, 
unto  the  said  party  of  the  first  part,  or  to  ....  executors,  administrators  or 
assigns.  And  until  default  be  made  in  the  payment  of  the  said  sum  of  money, 

the  said  party  of  the  first  part, executors,  administrators  and  assigns, 

may  remain  and  continue  in  the  quiet  and  peaceable  possession  of  said  goods 
and  chattels,  and  in  the  full  and  free  use  and  enjoyment  of  the  same. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto  set 

hand  and  seal  the  day  and  y ear  first  above  written [L.S.  ] 

Signed,  sealed  and  delivered,  in  the  presence  of 

46 


362  JUSTICES'  TREATISE. 


State  of . . : }  gg 

county  of J 

,  of  the  county  of ,  being duly  sworn ,  says,  that 

....  is  the  mortgagor  named  in  the  foregoing  mortgage ;  and  that  the  said 
mortgage  is  bona fide  and  made  without  any  design  to  defraud  or  delay 
creditors.  

Subscribed  and  sworn  to  before  me,  this day  of A.D.  18 . . 


Stateof.     .......       ?       - 

county  of j 

,  of  the  county  of  ... . ,  being  duly  sworn,  ....  says  that 

is  the  mortgagee  named  in  the  foregoing  mortgage  ;  and  that  the 

said  mortgage  is  bona  fide  and  made  without  any  design  to  defraud  or  delay 
creditors.  '  

Subscribed  and  sworn  to  before  me,  this  ....  day  of  . . . . ,  A.D.  18 . . 


CHAPTER,     XXXVI. 

CLAIMS   AGAINST   THE  ESTATES  OF  DECEASED 

PEESONS. 

SECTION  1.  Every  executor  or  administrator  shall,  imme 
diately  after  his  appointment,  cause  to  be  published  in  some 
newspaper  published  in  the  county,  if  there  be  one,  if  not, 
then  in  such  newspaper  as  may  be  designated  by  the  court, 
a  notice  to  the  creditors  of  the  deceased,  requiring  all  per 
sons  having  claims  against  the  deceased  to  exhibit  them 
with  the  necessary  vouchers,  within  ten  months  after  the 
first  publication  of  the  notice,  to  such  executor  or  adminis 
trator,  at  the  place  of  his  residence  or  transaction  of  busi 
ness,  to  be  specified  in  the  notice ;  such  notice  shall  be  pub 
lished  as  often  as  the  judge  or  court  shall  direct,  but  not 
less  than  once  a  week  for  four  weeks;  the  court  or  judge 
may  also  direct  additional  notice  by  publication  ©r  posting. 
In  case  such  executor  or  administrator  resign  or  be  re 
moved,  before  the  expiration  of  the  ten  months  after  the 
first  publication  of  such  notice,  his  successor  shall  give  such 
notice  only  for  the  unexpired  portion  of  the  ten  months. 
Pr.  Act,  128. 

SEC.  2.     The  term  "claims, "as  used  in  the  probate  act, 


CLAIMS  AGAINST  THE  ESTATES  OF  DECEASED  PERSONS.  363 

lias  reference  only  to  such  debts  or  demands  as  might  have 
been  enforced  against  testator  in  his  lifetime  by  personal 
action  for  the  recovery  of  money,  and  upon  which  only  a 
money  judgment  could  have  been  rendered.  21  Cal.  32. 

SEC.  3.  Claims  against  an  estate  may  be  presented  to  the 
executor  or  administrator  thereof  before  his  publication  of 
notice  to  creditors  to  present  their  claims.  19  Cal.  331. 

SEC.  4.  Where  the  executor  or  administrator  has  prop 
erty  which  belongs  to  another,  the  owner  is  not  required  to 
present  his  account  as  if  he  were  a  creditor.  The  claimant 
of  specific  property,  and  not  of  a  debt,  cannot  properly  be 
called  a  creditor,  within  the  meaning  of  the  probate  law. 
9  Cal.  658. 

SEC.  5.  If  a  claim  be  not  presented  within  ten  months 
after  the  first  publication  of  the  notice,  it  shall  be  barred 
forever :  provided,  if  it  be  not  then  due,  or  if  it  be  contin 
gent,  it  may  be  presented  within  ten  months  after  it  shall  be 
come  due  or  absolute ;  and,  provided  further,  that  when  it 
shall  be  made  to  appear  by  the  affidavit  of  the  claimant,  to 
the  satisfaction  of  the  executor  or  administrator  and  the 
probate  judge,  that  the  claimant  had  no  notice  as  provided 
in  this  act,  by  reason  of  being  out  of  the  state,  it  may  be 
presented  any  time  before  a  decree  of  distribution  is  entered. 
Probate  Pr.  Act,  130. 

SEC.  6.  Every  claim  presented  to  the  administrator  shall 
be  supported  by  the  affidavit  of  the  claimant,  that  the 
amount  is  justly  due,  that  no  payments  have  been  made 
thereon,  and  that  there  are  no  offsets  to  the  same,  to  the 
knowledge  of  the  claimant  or  other  affiant:  provided,  that 
when  the  affidavit  is  made  by  any  other  person  than  the 
claimant,  he  shall  set  forth  in  the  affidavit  the  reasons  it  is 
not  made  by  the  claimant.  The  oath  may  be  taken  before 
any  officer  authorized  to  administer  oaths.  The  executor  or 
administrator  may  also  require  satisfactory  vouchers  or 
proofs,  to  be  produced  in  support  of  the  claim ;  the  amount 
of  interest  shall  be  computed  and  included  in  the  statement 
of  the  claim,  and  the  rate  of  interest  determined.  In  case  the 
estate  is  insolvent,  no  claim  contracted  after  the  passage  of 
this  act  shall  bear  greater  interest  than  ten  per  cent,  per 
annum  from  and  after  the  time  of  issuing  letters.  Probate 
Pr.  Act,  131. 


364  JUSTICES'  TREATISE. 

SEC.  7.  When  a  claim  accompanied  by  the  affidavit  re 
quired  in  the  preceding  section  has  been  presented  to  the 
executor  or  administrator,  he  shall  indorse  thereon  his  allow 
ance  or  rejection,  with  the  day  and  date  thereof;  if  he  allow 
the  claim  it  shall  be  presented  to  the  probate  judge  for  his 
approval,  who  shall  in  the  same  manner  indorse  upon  it  his 
allowance  or  rejection.  If  the  executor  or  administrator  or 
the  judge,  refuse  or  neglect  to  indorse  such  allowance  or 
rejection  for  ten  days  after  the  claim  shall  have  been  pre 
sented  to  him,  such  refusal  or  neglect  may  be  deemed  equiv 
alent  to  a  rejection;  and  if  the  presentation  be  made  by  a 
notary,  the  certificate  of  such  notary,  under  seal,  shall  be 
prima  facie  evidence  of  such  presentment  and  rejection;  if 
the  claim  be  presented  to  the  executor  or  administrator  be 
fore  the  expiration  of  the  time  limited  for  the  presentation 
of  claims,  the  same  may  be  held  valid,  though  acted  upon 
by  the  executor  or  administrator  and  by  the  judge,  after  the 
expiration  of  such  time.  Probate  Pr.  Act,  132. 

SEC.  8.  In  regard  to  claims  not  due  at  the  date  of  the 
first  publication  of  notice  to  creditors,  the  supreme  court 
say: 

1st.  Under  the  one  hundred  and  thirtieth  section  of  the  act 
of  1851,  relative  to  the  estates  of  deceased  persons,  claims 
against  an  estate  which  are  due  must  be  presented  to  the 
person  having  charge  of  the  estate  as  executor  or  adminis 
trator  within  the  time  allowed,  or  they  will  not  constitute 
a  charge  against  the  estate. 

2d.  Contingent  claims  and  claims  not  due  do  not  come 
within  the  first  clause  of  section  one  hundred  and  thirty 
above-named;  they  may  be  presented  to  the  executor,  etc., 
within  ten  months  after  becoming  due  or  absolute.  But 
after  becoming  due  or  absolute  they  must  be  presented  ac 
cording  to  the  statute. 

3d.  Under  the  two  hundred  and  forty-fourth  section  of 
the  statute  a  contingent  claim  may  be  presented  to  the  pro 
bate  judge,  without  the  afiiclavit  required  by  section  one 
hundred  and  thirty-one  of  the  probate  practice  act;  and  the 
effect  might  be  to  cause  the  money  to  which  the  party  may 
be  prospectively  entitled  to  be  paid  in  court.  But  this  does 
not  relieve  the  party  from  the  necessity  of  presenting  such 


CLAIMS  AGAINST  THE  ESTATES  OF  DECEASED  PERSONS.  365 

claim  to  the  executor  after  it  becomes  absolute,  with  the 
proper  affidavit,  before  he  can  be  compelled  to  act  on  it. 

4th.  The  statute  does  not  provide  for  the  approval  of  a 
contingent  claim;  and  when  such  a  claim  is  presented  to 
the  executor  and  the  probate  judge,  and  is  by  them  allowed, 
such  allowance  does  not  give  validity  to  the  claim  as  a  judg 
ment  against  the  estate. 

5th.  No  presentation  of  a  claim  to  an  executor  is  effectual 
without  an  affidavit  of  its  justness. 

6th.  The  allowance  of  a  claim  due,  and  not  contingent, 
by  the  executor,  and  its  approval  by  the  probate  judge, 
according  to  the  statute,  fixes  the  obligation  upon  the  estate 
as  a  judgment. 

7th.  A  claim,  verified  and  filed  with  the  county  clerk, 
but  not  presented  to  the  executor,  is  no  charge  upon  the 
estate.  Pico  vs.  De  La  Ghierra,  18  Cal.  422. 

SEC.  9.  When  a  claim  is  rejected  either  by' the  executor 
or  administrator  or  the  probate  judge,  the  holder  shall 
bring  suit  in  the  proper  court  against  the  executor  or  ad 
ministrator,  within  three  months  after  the  date  of  its  rejec 
tion,  if  it  be  then  due,  or  within  three  months  after  it 
becomes  due,  otherwise  the  claim  shall  be  forever  barred. 
Probate  Pr.  Act,  134. 

SEC.  10.  No  claim  shall  be  allowed  by  the  executor  or 
administrator,  or  by  the  probate  judge,  which  is  barred  by 
the  statute  of  limitations.  When  a  claim  shall  be  presented 
to  the  probate  judge  for  his  allowance,  he  may,  in  his  dis 
cretion,  examine  the  claimant  and  other  persons  on  oath 
touching  the  validity  of  the  claim,  and  may  hear  any  other 
legal  evidence  in  relation  thereto.  Probate  Pr.  Act,  135. 

SEC.  11.  No  holder  of  any  claim  against  an  estate  shall 
maintain  any  action  thereon,  unless  the  claim  shall  have 
been  first  presented  to  the  executor  or  administrator.  Pro 
bate  Pr.  Act,  136. 

SEC.  12.  The  word  "claim,"  in  section  one  hundred  and 
thirty-six,  probate  act,  is  sufficiently  comprehensive  to  ex 
clude  every  species  of  charge  or  account  against  an  estate, 
whether  the  same  be  recorded  or  not.  The  intention  was 
undoubtedly  to  protect  the  estates  of  deceased  persons 
from  harassing  and  expensive  litigation,  until  such  a  period 


366  JUSTICES'  TREATISE. 

as  the  administrator  or  executor  could  secure  the  assets  for 
the  purpose  of  liquidating  the  claims,  and  this  intention 
could  only  be  carried  out  by  applying  the  rule  to  all  de 
mands  or  claims  whatever.  6  Cal.  393. 

SEC.  13.  When  a  judgment  has  been  recovered,  with 
costs,  against  any  executor  or  administrator,  the  executor 
or  administrator  shall  be  individually  liable  for  the  costs,' 
but  they  shall  be  allowed  him  in  his  administration  ac 
counts,  unless  it  shall  appear  that  the  suit  or  proceeding 
in  which  the  costs  were  taxed  shall  have  been  prosecuted 
or  resisted  without  just  cause.  Probate  Pr.  Act,  144. 

SEC.  14.  If  the  executor  or  administrator  is  himself  a 
creditor  of  the  testator  or  intestate,  his  claim,  duly  au 
thenticated  by  affidavits,  shall  be  presented  for  allowance 
or  rejection  to  the  probate  judge,  and  its  allowance  by  the 
judge  shall  be  sufficient  evidence  of  its  correctness.  Pro 
bate  Pr.  Act,  145. 

SEC.  15.  The  claim  of  an  executor  or  administrator  must 
be  presented  to  the  probate  judge  within  ten  months  after 
the  publication  of  notice  for  the  presentation  of  claims.  10 
Cal.  482. 

SEC.  16.  The  time  during  which  there  shall  be  a  vacan 
cy  in  the  administration  shall  not  be  included  in  any  limi 
tations  herein  prescribed.  Probate  Pr.  Act,  137. 

SEC.  17.  If  an  action  be  pending  against  the  testator  or 
intestate  at  the  time  of  his  death,  the  plaintiff  shall  in  like 
manner  present  his  claim  to  the  executor  or  administrator 
for  allowance  or  rejection,  authenticated  as  required  in 
other  cases,  and  no  recovery  shall  be  had  in  the  action 
unless  proof  be  made  of  the  presentments.  Probate  Pr. 
Act,  138. 

SEC.  18.  Whenever  any  claim  shall  be  presented  to  any 
executor  or  administrator  or  to  the  probate  judge,  and  he 
shall  be  willing  to  allow  the  same  in  part,  he  shall  state  in 
his  indorsement  the  amount  he  is  willing  to  allow.  If  the 
creditor  refuse  to  accept  the  amount  allowed  in  satisfaction 
of  his  claim,  he  shall  recover  no  costs  id  any  action  which 
he  may  bring  against  the  executor  or  administrator,  unless 
he  shall  recover  a  greater  amount  than  that  offered  to  be 
allowed.  Probate  Pr.  Act,  139. 


CLAIMS  AGAINST  THE  ESTATES  OF  DECEASED  PEESONS.    367 

SEC.  19.  The  effect  of  any  judgment  rendered  against 
any  executor  or  administrator,  upon  any  claim  for  money 
against  the  estate  of  his  testator  or  intestate,  shall  be  only 
to  establish  the  claim  in  the  same  manner  as  if  it  had  been 
allowed  by  the  executor  or  administrator  and  the  probate 
judge,  and  the  judgment  shall  be  that  the  executor  or 
administrator  pay,  in  due  course  of  administration,  the 
amount  ascertained  to  be  due.  A  certified  transcript  of 
the  judgment  shall  be  filed  in  the  probate  court. '  No  ex 
ecution  shall  issue  upor*  such  judgment,  nor  shall  it  create 
any  lien  upon  the  property  of  the  estate  or  give  to  the  judg 
ment  creditor  any  priority  of  payment.  Probate  Pr.  Act, 
140. 

SEC.  20.  "When  any  judgment  has  been  rendered  against 
the  testator  or  intestate  in  his  life;  no  execution  shall  issue 
thereon  after  his  death ;  but  a  certified  copy  of  such  judg 
ment  shall  be  presented  to  the  executor  or  administrator 
and  be  allowed  and  filed  or  rejected,  as  any  other  claim, 
but  need  not  be  supported  by  the  affidavit  of  the  claimant, 
and  if  justly  due  and  unsatisfied  shall  be  paid  in  due  course 
of  administration  :  provided,  however,  that  if  the  execution 
shall  have  been  actually  levied  upon  any  property  of  the 
deceased,  the  same  may  be  sold  for  the  satisfaction  thereof, 
and  the  officer  making  the  sale  shall  account  to  the  execu 
tor  or  administrator  for  any  surplus  in  his  hands.  The 
executor  or  administrator  may,  however,  require  the  affi 
davit  of  the  claimant  or  other  satisfactory  proof,  that  the 
judgment  or  any  portion  thereof,  is  justly  due  and  unsatis 
fied.  Probate  Pr.  Act,  141. 

SEC.  21.  The  following  is  a  sufficient  form  for  the  pres 
entation  of  a  claim  against  the  estate  of  a  deceased  person, 
whether  the  same  be  a  promissory  note  or  account.  It 
should,  if  it  be  an  account,  be  made  out  from  the  journal 
or  day-book,  because  it  is  proper  that  the  items  of  the 
account  should  be  given  and  the  date  of  delivery  be  cor 
rectly  noted : 

Creditor's  Claim,. 

In  the  probate  court  of  the  county  of ,  state  pf 

In  the  matter  of  the  estate  of  ) 
,  deceased. f 

Letters  of  administration  on  the  estate  of deceased,  having 


368 


JUSTICES    TREATISE. 


been  granted  to [or,  "  letters  having  been  granted  to ,  as 

executor  of  the  last  will  and  testament  of ,  deceased"],  the  under 
signed,  creditor  of  said  deceased,  presents claim  against  the  estate  of 

said  deceased,  with  the  necessary  vouchers,  to  said  administrator  [or,  "ex 
ecutor  ' '  ]  for  approval,  as  follows,  to  wit : 

Estate  of ,  deceased, 

To ,  Dr. 

State  of  , 

county  of 

,  whose  foregoing  claim  is  herewith  presented  to  the  admin 
istrator  [or,  "executor"]  of  said  deceased^  being  duly  sworn,  says  the 

amount  thereof,  to  wit :  the  sum  of dollars,  is  justly  due  to  said 

claimant ;  that  no  payments  have  been  made  thereon,  and  that  there  are 
no  offsets  to  the  same  to  the  knowledge  of  said  claimant. 

Subscribed  and  sworn  to  before  me,  this day  of ,  A.D.  18 . . 


CHAPTER     XXXVII. 


ACTIONS    TO    KECOVEE    POSSESSION    OF    PEE- 
SONAL  PEOPEETY. 


SECS. 

WHEN  REPLEVIN  LIES 1-6 

WHEN  PEEVIOTJS  DEMAND  NEC- 

ESSAEY 7-15 

THE  PLEADINGS 16-17 

THE  JUDGMENT 18-20 

WHEN    PEOPEETY   CANNOT    BE 

TAKEN  UNDEB  EXECUTION.        21 

MEASUEE  OF  DAMAGES 22 

CLAIM  OF  DELIVEEY  OF  PEOP 
EETY  BEFOEE   ANSWEE  ....         23 
WHAT  AFFIDAVIT  MUST  SHOW  . .         24 

FOEM  OF  AFFIDAVIT 25 

OBDEB  TO  CONSTABLE  TO  TAKE 

PEOPEETY 26 

FOEM  OF  OEDEE 27 

DUTY  OF  OFFICES 28 

FOEM    OF  PLAINTIFF'S  UNDEB- 

TAKING 29 

SUITS  ON  THE  UNDEBTAKING.  . .  30-32 


SECS. 

EFFECT  OF  THE  UNDEETAKING.  .        33 

WHEN  DEFENDANT  is  ENTITLED 
TO  EETUBN  OF  PBOPEBTY 
AFTEB  JUDGMENT 34 

DEFENDANT'S  EXCEPTION  TO 

SUEETIES  ON  UNDEETAKING  35 

WHEN  DEFENDANT  MAY  EE- 
QUIEE  EETUEN  OF  PEOP 
EETY  36 

FOEM  OF  UNDEETAKING  ON  EE 
TUEN  TO  DEFENDANT 37 

JUSTIFICATION  OF  DEFENDANT'S 

SUEETIES 38 

FOEM  OF  CERTIFICATE  OF  JUSTI 
FICATION  39 

How  OFFICEB  TO  TAKE  AND 

KEEP  PEOPEETY ,.  40 

CLAIMS  BY  THIED  PEESONS 41 

OFFICEE'S  EETUEN 42 


When  Replevin  Lies. 

SECTION  1.     Eeplevin  lies  for  all  goods  and  chattels  un 
lawfully  taken  or  detained,  and  may  be  brought  whenever 


ACTIONS  TO  RECOVER  PERSONAL  PROPERTY.      369 

one  person  claims  personal  property  in  the  possession  of 
another,  and  this  whether  the  claimant  has  ever  had  posses 
sion  or  not,  and  whether  his  property  in  the  goods  be  abso 
lute  or  qualified,  provided  he  has  the  right  to  the  posses 
sion.  22  Col.  .139. 

SEC.  2.  Under  our  system,  probably  an  action  can  be 
maintained  upon  any  title,  legal  or  equitable,  or  upon  an 
instrument  sealed  or  unsealed,  which  entitles  plaintiff  to 
the  possession  of  the  property  in  dispute  as  against  the 
defendant.  13  CaL'33. 

SEC.  3.  Against  the  cutting  of  timber  the  owner  of  real 
property  is  entitled  to  the  preventive  remedy  of  injunction. 
Whilst  the  timber  is  growing,  it  is  part  of  the  realty,  and 
its  destruction  constitutes  the  kind  of  waste  the  commission 
of  which  a  court  of  equity  will^  upon  petition,  restrain. 
AVhen  once  cut  the  character  of  the  property  is  changed;  it 
has  ceased  to  be  a  part  of  the  realty  and  has  become  per 
sonalty,  but  its  title  is  not  changed.  It  belongs  to  the 
owner  of  the  land  as  much  afterwards  as  previously,  and  he 
may  pursue  it  in  whosoever  hands  it  goes,  and  is  entitled  to 
all  the  remedies  for  its  recovery  which  the  law  affords  for 
the  recovery  of  any  other  personal  property  wrongfully 
taken  or  detained  from  its  owner.  And  if  he  cannot  find 
the  property  to  enforce  its  specific  return,  he  may  waive  the 
wrong  committed  in  its  removal  and  use,  and  sue  for  the 
value  as  upon  an  implied  contract  of  sale.  16  Cal.  578. 

SEC.  4.  A  party  should  not  be  denied  the  right  of  action 
for  his  property,  and  the  right  of  recovery  against  any  one, 
whether  a  sheriff  or  not,  unless  it  be  held  by  legal  process 
against  himself.  3  Cal.  470. 

SEC.  5.  "Where  A  had  a  large  quantity  of  flour  stored  in 
the  warehouse  of  B,  and  sold  a  portion  of  it  to  C,  and  gave 
an  order  for  the  flour  sold  on  B,  who  accepted  the  same  and 
gave  C  in  exchange  a  receipt  for  the  same,  and  transferred 
it  on  his  warehouse  books  to  the  account  of  C,  but  did  not 
separate  any  specific  portion  from  the  flour  of  A,  as  the 
property  of  B,  and  the  whole  was  subsequently  seized  in  an 
action  against  A.  It  was  held,  that  the  sheriff  was  not  lia 
ble  to  C,  in  the  absence  of  segregation  of  the  flour,  but  that 
B  was  estopped  by  his  receipt  from  denying  his  liability. 
47 


370  JUSTICES'  TREATISE. 

6  Col.  68.  This  action  being  for  the  recovery  of  specific 
property,  it  was  necessary  to  show,  as  against  the  sheriff,  that 
the  portion  claimed  by  the  plaintiffs  had  been  severed  and 
designated  from  the  bulk  out  of  which  it  was  sold;  other 
wise,  there  was  no  mode  of  identification.  This  resulted 
from  the  nature  and  character  of  the  action.  But  in  favor 
of  B  the  same  reasoning  could  not  be  invoked.  He  was  a 
warehouseman  and  gave  his  receipt  for  a  specific  quantity 
of  flour.  He  was  -estopped  from  denying  his  liability.  6 
Cal.  71. 

SEC.  6.  Action,  in  the  nature  of  replevin,  to  recover 
eighteen  hundred  dollars  taken  by  the  defendant  as  sheriff, 
under  process,  as  the  property  of  one  McCormick.  Mc- 
Cormick  was  a  witness,  and  testified  that  this  money  was 
taken  from  a  safe  in  his^  possession  belonging  to  Wells, 
Fargo  &  Co.,  who  had  four  hundred  dollars  in  the  safe, 
the  balance  being  the  money  of  plaintiff.  McCormick 
was  present  at  the  levy  of  the  officer,  and  was  agent  for 
Wells,  Fargo  &  Co.,  and  when  the  plaintiff  made  the 
claim  for  the  money  taken,  interposed  no  objection.  The 
supreme  court  say :  The  ground  taken  by  defendant  on 
appeal  is  that  there  was  no  segregation  of  this  money 
sued  for  from  the  mass  in  the  safe,  so  as  to  enable  the 
plaintiff  to  bring  and  maintain  his  suit.  But  the  posi 
tion,  however  plausible,  is  not  sustained.  As  McCormick 
was  the  agent  of  Wells,  Fargo  &  Co.,  to  keep  their  money, 
he  had  authority  to  retain  it  in  their  safe,  the  proper  place 
of  its  deposit,  and  when  he  recognized  the  claim  of  the 
plaintiff,  before  the  eighteen  hundred  dollars  was  taken 
away,  to  the  latter  sum,  it  was  as  if  he  had  elected  for  Wells, 
Fargo  &  Co.  to  hold  the  four  hundred  dollars  as  theirs.  It 
was,  in  other  words,  as  if  a  division  and  allotment  had  been 
made  of  the  money  in  the  safe  according  to  the  respective 
rights  of  the  owners.  At  least,  there  was  evidence  enough 
to  go  to  the  jury  as  to  this  matter  of  severance,  and  the 
court  did  not  err  in  refusing  a  nonsuit.  14  Cal.  412,  413. 

When  Previous  Demand  Necessary. 
SEC.  7.     If  the  original  possession  of  property  is  acquired 


ACTIONS  TO  RECOVER  PERSONAL  PROPERTY.      371 

by  a  tort,  no  demand  previous  to  the  institution  of  a  suit 
for  its  recovery  is  necessary.     23  Cal.  359;  12  Cal.  483. 

SEC.  8.  In  an  action  by  A  against  a  sheriff  for  seizing 
the  property  of  A  in  the  hands  of  B,  as  the  servant  of  A,  on 
an  execution  against  B,  no  demand  is  necessary  before 
bringing  suit,  the  plaintiff  being  deemed  to  be  in  possession 
of  the  property  at  the  time  of  the  levy  through  his  servant — 
the  sheriff  had  notice  that  the  property  was  owned  by  the 
plaintiff,  the  original  taking  being  therefore  tortious.  The 
psssession  of  a  servant  is  the  possession  of  a  master  for  the 
purpose  of  maintaining  trespass  (1  Cliitty's  PI.  194);  and 
the  same  rule  applies  in  an  action  of  replevin  in  the  cepit. 
3  Hill,  348;  1  Cal.  161. 

SEC.  9.  It  is  only  when  the  original  possession  is  lawful, 
and  the  action  relies  upon  the  unlawful  detention,  that  a 
demand  is  required.  12  Cal.  483. 

SEC.  10.  A  sale  effected  by  fraud  works  no  change  of 
property.  The  wares  must  be  considered  as  remaining  in 
the  vendors  as  the  original  owners.  This  being  so,  the 
civil  remedies  of  the  party  defrauded  are  clear,  viz:  trover 
or  replevin  in  the  detinet  or  trespass,  or  replevin  in  the  cepit, 
at  his  election.  Trover  will  lie  without  demand  and  refusal, 
because  the  original  taking  is  tortious.  The  general  and 
absolute  ownership  still  remains  in  the  vendor  or  bailor; 
and  not  only  the  original  interference  with  the  property  on 
the  part  of  the  vendee  or  bailee  but  any  subsequent  acts  of 
ownership  on  his  part  may  be  considered  as  an  unlawful 
or  tortious  taking.  The  general  owner  holds  the  construct 
ive  possession  of  personal  property;  and  this  is  sufficient 
to  maintain  trespass,  though  the  actual  possession  be  in 
another.  Where  the  owner  consented  to  the  taking  it  would 
undoubtedly  be  a  sufficient  answer.  But  consent,  in  law,  is 
more  than  a  mere  formal  act  of  the  mind.  It  is  an  act 
unclouded  by  fraud,  duress  or,  sometimes,  even  mistakes. 
12  Cal.  462,  463. 

SEC.  11.   Demand,  its  purpose  in  Trover  and  Eeplevin. — The 

only  purpose  of  proving  a  demand  in  the  actions  of  trover 

and  replevin  is  to  show  the  defendants  wrongful.      Whitman 

G.  &  S.  M.  Co.  vs.  Tuttk,  4  Nev.  494. 

SEC.  12.   When  Demand  for  Personal  Property  Unnecessary. 


372  JUSTICES'  TEEATISE. 

—When  the  owner  of  personal  property  does  not  part  with 
it  voluntarily,  but  it  is  tortiously  taken  from  his  possession, 
or  any  act  is  done  which  makes  the  possession  of  the  per 
son  having  it  wrongful,  no  demand  is  necessary  to  be  shown 
to  entitle  the  owner  to  a  recovery  of  it.  4  Nev.  494. 

SEC.  13.  Demand  not  Indispensably  'Necessary. — In  an 
action  of  replevin  it  is  not  indispensably  necessary  to  show 
a  demand  upon  the  defendant  to  return  the  property  before 
suit  brought.  A  demand  serves  no  purpose,  except  to 
establish  a  conversion  or  a  wrongful  detention.  When  that 
can  be  established  without  showing  a  demand,  a  demand 
is  unnecessary.  Justice  Johnson  dissenting.  Perkins  vs. 
Barnes,  3  Nev.  557. 

SEC.  14.  When,  therefore,  the  defendant  in  his  answer 
admits  the  detention  and  claims  title  in  himself,  the  title 
alone  is  put  in  issue  and  no  demand  need  be  shown.  Jus 
tice  Johnson  dissenting.  3  Nev.  557. 

The  Pleadings. 

SEC.  15.  An  allegation  in  the  complaint  of  the  place 
where  the  property  was  taken,  in  an  action  to  recover  pos 
session  of  personal  property,  is  surplusage.  25  CaL  545. 

SEC.  16.  In  such  action  to  enable  the  defendant  to 
obtain  the  value  of  the  property  on  judgment  of  dismissal 
against  the  plaintiff  for  failure  to  appear,  the  answer  must 
contain  some  allegation  or  prayer  relative  to  the  change  of 
possession  from  defendant  to  plaintiff.  The  judgment  of 
return  is  in  the  nature  of  a  cross  judgment,  and  there  must 
be  some  appropriate  averments  in  the  pleadings  to  put  in 
issue  the  facts  upon  which  the  relief  is  given.  13  Cal.  430, 
431. 

SEC.  17.  Admission  of  tlie  Value  of  Goods. — In  an  action 
for  the  conversion  of  chattels  alleged  by  plaintiff  to  be  of 
a  certain  value,  defendant  denied  that  they  were  of  such 
value,  or  of  any  greater  value  than  a  certain  less  sum  named : 
Held,  that  this  was  an  admission  that  they  were  worth  the 
less  sum  named.  Carlyon  vs.  Lannan,  4  Nev.  156. 

The  Judgment. 
SEC.  18.     In  an  action  of  replevin  by  W.  it  appeared  on 


ACTIONS  TO   RECOVER  PERSONAL  PROPERTY.  373 

the  trial  that  the  property  sued  for  belonged  to  him  and 
one  F.,  a  third  party,  and  the  jury  returned  a  general  A*er- 
dict  for  the  defendants,  and  the  court  gave  judgment  for  a 
return  of  the  property  to  the  defendants ;  it  was  held,  that 
there  was  no  error  in  the  judgment.  This  right  of  return  is 
not  necessary,  or;  perhaps,  at  all  dependent  upon  any  rind 
ing  of  the  jury  to  that  effect ;  but  the  results  as  matter  of 
right  in  the  plaintiff  and  a  conclusion  of  law  from  the  ver 
dict  for  defendants.  It  is  the  right  of  the  court  to  state 
this  legal  conclusion  as  a  portion  of  its  judgment.  The 
legal  effect  of  a  finding  for  the  defendants  on  the  question 
of  the  plaintiff's  right  to  the  property,  is  to  entitle  the 
defendants,  from  whom  it  was  taken,  to  its  restoration. 
Nor  is  there  anything  in  the  failure  to  give  an  alternative 
judgment  for  the  value  of  the  property.  This  omission 
might  be  complained  of  by  the  defendants  if  they  had 
shown  the  value ;  but  it  is  no  ground  of  complaint  on  the 
part  of  the  plaintiff.  10  Cal  379,  380. 

SEC.  19.  Where  damages  are  also  claimed  for  the  deten 
tion  of  personal  property,  the  judgment  may  be  for  more 
than  the  value  as  alleged  in  the  complaint,  if  it  be  within 
the  ad  damnum  of  the  writ.  The  value  of  the  property  is 
only  one  predicate  of  the  recovery.  15  Cal.  213. 

SEC.  20.  The  case  of  Wratten  vs.  Wilson  was  an  application 
to  the  district  court  for  a  writ  of  certiorari  to  the  county 
court  of  Sonoma  county.  The  affidavit  of  the  defendant, 
Wilson,  who  applied  for  the  writ,  averred  that  one  Boggs, 
a  justice  of  the  peace,  rendered  a  judgment  in  the  action  in 
favor  of  the  plaintiff  against  the  defendant;  that  he  appeal 
ed  therefrom  to  the  county  court,  where  judgment  was  again 
rendered  against  him ;  that  the  complaint  in  the  action  was 
for  the- recovery  of  personal  property  of  the  alleged  value  of 
one  hundred  and  sixty-seven  dollars  and  fifty  cents,  and  it 
prayed  for  judgment  for  the  possession  of  the  property  or 
the  value  thereof,  to  wit :  one  hundred  and  sixty-seven  dol 
lars  and  fifty  cents,  together  with  two  hundred  dollars  dam 
ages  and  costs  of  suit.  The  district  court  issued  the  writ 
and  rendered  a  judgment  reversing,  setting  aside  and  an 
nulling,  the  judgment  of  the  county  court,  and  for  costs 
ci-,uust  the  plaintiff,  from  which  he  appealed.  The  supreme 


374  JUSTICES'  TKEATISE. 

court  say:  "The  affidavit  upon  which 'the  application  for 
the  writ  of  certiorari  as  founded  is  insufficient,  as  it  does 
not  set  forth  the  amount  of  the  judgments  rendered  either 
by  the  justice  of  the  peace  or  the  county  court.  That  was 
an  essential  fact  necessary  to  be  averred  in  order  to  show 
that  they  had  exceeded  their  jurisdiction.  The  district 
court,  therefore,  erred  in  granting  the  order  for  the  writ. 
The  proceedings  before  the  justice  of  the  peace  and  in  the 
county  court  were  set  forth  in  the  return  to  the  writ,  by 
which  it  appears  that  the  former  rendered  a  judgment  for 
fifty-seven  dollars  and  fifty  cents,  and  the  latter  for  twenty 
dollars  and  costs.  They  did  not  therefore  exceed  their 
jurisdiction  in  rendering  these  judgments,  and  the  mere  fact 
that  the  plaintiff  in  his  complaint  prayed  for  the  recovery 
of  the  property  or  its  value,  one  hundred  and  sixty-seven 
dollars  and  fifty  cents,  with  two  hundred  dollars  damages 
and  costs,  did  not  render  the  judgments  they  entered  an 
excess  of  jurisdiction.  The  prayer  for  damages  might  have 
been  stricken  out  or  disregarded.  It  ought  not  to  have 
turned  him  out  of  court.  Van  Etten  vs.  Gilson,  6  Cal.  19. 
The  district  court  therefore  erred  in  reversing  the  judg 
ment.  The  judgment  of  the  district  court  was  reversed, 
and  the  proceedings  relating  to  the  writ  of  certiorari  were 
dismissed  at  the  cost  of  the  respondent."  22  Cal.  467,  468. 

"When  Property  Cannot  be  Taken  under  Execution. 

SEC.  21.  Where  A.  commences  a  suit  against  B  to  recover 
possession  of  personal  property,  and  before  the  suit  is  com 
menced,  B  has  sold  the  property  to  0,  if  A  recovers  judg 
ment,  the  property  cannot  be  taken  from  C  under  an  exe 
cution  issued  on  the  judgment  for  its  delivery.  24  Cal.  419. 

Measure  of  Damages. 

SEC.  22.  In  the  case  of  Dorsey  et  al.  vs.  Manlove  (14  Cal. 
553),  the  subject  of  the  measure  of  damages  was  fully  dis 
cussed,  and  the  following  rules  were  announced : 

1st.  In  actions  for  taking  and  detaining  personal  prop 
erty,  the  measure  of  damages  is  the  value  of  the  property, 
with  interest,  unless  circumstances  of  aggravation  are  shown. 


ACTIONS  TO  KECOVEK  PERSONAL  PROPERTY.       375 

2d.  If  circumstances  of  aggravation  are  shown  for  the 
purpose  of  increasing  the  damages,  then  the  defendant  may 
show  circumstances  explanatory  of  his  motives  and  inten 
tions. 

3d.  The  rule  of  damages  beyond  the  value  of  the  property 
and  interest,  depend  on  the  presence  or  absence  of  circum 
stances  of  aggravation  in  the  trespass :  as,  fraud,  malice  or 
oppression. 

4th.  In  the  absence  of  such  circumstances  the  rule  is 
compensation  merely,  which  means,  solely,  the  injury  done 
to  the  property,  and  not  to  collateral  or  consequential  dam 
ages  resulting  to  the  owner. 

5th.  "When  the  trespass  is  committed  from  wanton  or 
malicious  motives,  or  a  reckless  disregard  of  the  rights  of 
others,  or  under  circumstances  of  great  hardship  and  op 
pression,  the  rule  of  mere  compensation  is  not  enforced, 
and  the  measure  and  amount  of  damages  are  matters  for  the 
jury  alone,  and  they  may  award  punitive  or  exemplary  dam 
ages. 

6th.  If  the  trespass  be  committed  by  an  officer — sheriff 
or  constable — under  and  by  the  authority  of  a  writ  which  is 
void,  yet  if  there  be  no  circumstances  of  aggravation  in  his 
motives  or  manner  of  executing  the  writ,  the  rule  of  com 
pensation  merely  applies. 

Claim  of  Delivery  of  Property  before  Answer. 

SEC.  23.  The  plaintiff,  in  an  action  to  recover  the  pos 
session  of  personal  property,  may,  at  the  time  of  issuing  the 
summons  or  at  any  time  before  answer,  claim  the  delivery 
of  such  property  to  him,  as  provided  in  this  chapter.  Pr. 
Act,  556 ;  Gen.  Laws,  5487. 

What  Affidavit  must  Show. 

SEC.  24.  When  a  delivery  is  claimed,  an  affidavit  shall 
be  made  by  the  plaintiff,  or  by  some  one  in  his  behalf, 
showing  : 

1st.  That  the  plaintiff  is  the  owner  of  the  property  claim 
ed  [particularly  describing  it],  or  is  lawfully  entitled  to  the 
possession  thereof. 


376  JUSTICES'  TREATISE. 

2d.  That  the  property  is  wrongfully  detained  by  the  de 
fendant. 

3d.  The  alleged  cause  of  the  detention  thereof,  according 
to  his  best  knowledge,  information  and  belief. 

4th.  That  the  same  has  not  been  taken  for  a  tax,  assess 
ment  or  fine,  pursuant  to  a  statute ;  or  seized  under  an 
execution,  on  an  attachment  against  the  property  of  the 
plaintiff,  or  if  seized  that  it  is  by  statute  exempt  from  such 
seizure. 

5th.  The  actual  value  of  the  property.  Pr.  Act,  557 ; 
Gen.  Laws,  5488. 

Form  of  Affidavit  on  Claim  and  Delivery  of  Personal  Property. 

SEC.  25.     The  following  is  a  form  of  affidavit  on  claim 
and  delivery  of  personal  property : 
In  the  justice's  court  of  township,  in  the  county  of ,  state 


of 


plaintiff, 
against 


defendant. 

Stoteof, ......  I 

county  of j 

of  said  county,  being  duly  sworn,  says  :  That  he  is  the  plaintiff 

in  the  above-entitled  action;  that  the  said  plaintiff  is  the  owner  of  and  is 
lawfully  entitled  to  the  possession  of  the  following  personal  property,  to  wit: 
[description  of  the  property]  ;  that  the  said  property  is  in  the  possession 
of  and  wrongfully  detained  by  the  defendant  in  said  action,  and  that  the 
alleged  .cause  of  said  detention,  according  to  this  affiant's  best  knowledge, 
information  and  belief,  is  as  follows,  to  wit:  [state  the  cause  of  detention]; 
that  the  said  property,  or  any  part  thereof,  has  not  been  taken  for  a  tax, 
assessment  or  fine,  pursuant  to  statute  or  seized  under  an  execution,  or  an 
attachment  against  the  property  of  the  said  plaintiff,  and  that  the  actual 
value  of  the  said  property  is  ...  hundred  dollars.  

Subscribed  and  sworn  to  before  me,  this  ....  day  of ,  A.D.  18  ... 


Justice  of  the  peace  of  said  township. 

Order  to  Constable  to  take  Property. 

SEC.  26.  The  justice  shall  thereupon,  by  an  indorsement 
in  writing  upon  the  affidavit,  order  the  sheriff  or  a  constable 
of  the  county  to  take  the  same  from  the  defendant,  and 
deliver  it  to  the  plaintiff,  upon  receiving  the  undertaking 
mentioned  in  the  following  section.  Pr.  Act,  558;  Gen. 
Laws,  5489. 


ACTIONS  TO  RECOVER  PERSONAL  PROPERTY.  377 


Form  of  Order  to  Constable  to  Take  Property,  to  be  Indorsed  on 

Affidavit 

SEC.  27.  The  following  is  a  form  of  order  to  constable  to 
take  property,  to  be  indorsed  on  affidavit : 

The  people  of  the  state  of  . . . . ,  to  the  sheriff  or  any  constable  of  the  county 
of  . . . . ,  greeting  : 

You  are  hereby  ordered  to  take  the  within-described  property  from  the 
within-named  defendant,  and  deliver  the  same  to  the  within-named  plaintiff 
upon  receiving  a  written  undertaking,  executed  by  two  or  more  sufficient 
sureties,  approved  by  you,  to  the  effect  that  they  are  bound  in  double  the 
value  of  the  said  property,  as  stated  in  the  within  affidavit,  for  the  return  of 
the  said  property  to  the  said  defendant,  if  return  thereof  be  adjudged,  and 
for  the  payment  to  the  said  defendant  of  such  sum  as  may,  for  any  cause,  be 
recovered  against  the  said  plaintiff. 

Witness  my  hand,  this  ....  day  of  . . . .,  A.D.  18. . 


Justice  of  the  peace. 
Duty  of  Officer. 

SEC.  28.  Upon  the  receipt  of  the  affidavit  and  order, 
with  a  written  undertaking,  executed  by  two  or  more  suf 
ficient  sureties,  approved  by  the  officer,  to  the  effect  that 
they  are  bound  in  double  the  value  of  the  property,  as 
stated  in  the  affidavit,  for  the  prosecution  of  the  action 
for  the  return  of  the  property  to  the  defendant,  if  return 
thereof  be  adjudged,  and  for  the  payment  to  him  of  such 
sum  as  may,  for  any  cause,  be  recovered  against  the  plaint 
iff,  the  officer  shall  forthwith  take  the  property  described 
in  the  affidavit,  if  it  be  in  the  possession  of  the  defendant 
or  his  agent,  and  retain  it  in  his  custody.  He  shall  also, 
without  delay,  serve  on  the  defendant  a  copy  of  the  affida 
vit,  order  and  undertaking,  by  delivering  the  same  to  him, 
personally,  if  he  can  be  found  within  the  county  or  to  his 
agent,  from  whose  possession  the  property  is  taken,  or  if 
neither  can  be  found  within  the  county,  by  leaving  them  at 
the  usual  place  of  abode  of  either  within  the  county  with 
some  person  of  suitable  age  and  discretion,  or  if  neither 
have  any  known  place  of  abode  within  the  county,  by  put 
ting  them  into  the  nearest  post-office,  directed  to  the  de 
fendant.  Pr.  Act,  559 ;  Gen.  Laws,  5490. 
48 


378  JUSTICES'  TREATISE. 

Form  of  Undertaking  on  Claim  and  Delivery  of  Personal  Property. 

SEC.  29.     The  following  is  a  form  of  undertaking  on  claim 
and  delivery  of  personal  property  : 
In  the  justice's  court  of township,  in  the  county  of   ,  state  of 


plaintiff, 
against 


defendant. 

Whereas,  the  plaintiff  in  the  above-entitled  action  has  this  day  filed  his 
complaint  in  the  above-named  court  against  the  defendant  in  said  action, 
claiming  the  delivery  of  [description  of  the  property]  : 

Now,  therefore,  we,  ........  ,  as  principal,  and  ........  and  ........  , 

as  sureties,  do  hereby  agree  and  undertake,  and  are  bound,  in  consideration 
of  said  delivery,  in  the  sum  of   ......   dollars,  for  the  prosecution  of  the 

action  for  the  return  of  the  said  property  to  the  said  defendant,  if  return 
thereof  be  adjudged  by  the  said  court,  and  for  the  payment  to  the  said  de 
fendant  of  such  sum  as  may,  for  any  cause,  be  recovered  against  the  said 
plaintiff,  not  exceeding  the  sum  of  ...._..  dollars. 

In  witness  whereof,  we  have  hereunto  set  our  hands  and  seals,  this  ...... 

day  of  .......  A.D18.. 


State  of          ... 
county  of 

........  and  ........  ,  the  sureties  in  the  within  undertaking,  being  duly 

sworn,  say,  each  for  himself  and  not  one  for  the  other  :  That  he  is  a  resident 
and  freeholder  within  the  said  county,  and  is  worth  double  the  amount  stated 
in  the  said  undertaking  over  and  above  all  his  debts  and  liabilities,  exclusive 
of  property  exempt  from  execution. 

Subscribed  and  sworn  to  before  me,  this  ----  day  of  ----  ,  A.r>.  18.  . 


Justice  of  the  peace. 

Form  of  Approval  by  the  Officer. 

The  within  undertaking  is  hereby  approved  by  me,  this day  of , 

A.D.  18.. 

> 

Constable. 

Suits  on  the  Undertaking. 

SEC.  30.  Where  the  plaintiff  in  replevin  gives  the  statu 
tory  undertaking  and  takes  possession  of  the  property  in 
suit,  and  is  afterwards  nonsuited  and  judgment  entered 
against  him  for  the  return  of  the  property  and  for  costs, 
his  sureties  are  liable  for  damages  sustained  by  the  defend- 


ACTIONS  TO  RECOVER  PERSONAL  PROPERTY.      379 

ant  by  reason  of  a  failure  to  return  the  goods,  but  not  for 
damages  for  the  original  taking  and  detention,  the  value  of 
the  goods  not  having  been  found  by  the  jury.  The  facts 
which  upon  a  trial  by  jury  would  have  been  found  in  the 
original  replevin  suit,  are,  by  a  nonsuit  therein,  left  to  the 
jury  called  in  the  suit  on  the  undertaking,  so  far  as  the  con 
ditions  of  the  undertaking  will  authorize  an  inquiry  into 
them.  8  Cal.  446.. 

•SEC.  31.  In  an  action  on  a  replevin  bond,  the  defend 
ant's  liability  is  limited  to  the  damage  sustained  by  a  fail 
ure  to  return  the  property.  11  CaL  262. 

SEC.  32.  The  case  of  Mills  et  al.  vs.  Gleason  et  al.  was  a 
suit  upon  an  undertaking  executed  in  an  action  of  replevin, 
brought  by  one  Gould  against  the  present  plaintiffs,  the 
object  being  to  obtain  possession  of  the  property  pending 
the  action.  A  question  was  raised  as  to  whether  the  value 
of  the  property  could  be  recovered  as  damages,  the  counsel 
for  the  appellants  insisting  that  the  damages  were  to  be 
measured  by  the  judgment  in  the  action  of  replevin.  The 
undertaking  was  conditioned  "for  the  prosecution  of  the 
action  for  the  return  of  the  property  to  the  defendants,  if 
return  thereof  be  adjudged,  and  for  the  payment  to  them  of 
such  sum  as  may  for  any  cause  be  recovered  against  the 
plaintiffs."  The  action  was  dismissed  for  want  of  prosecu 
tion,  and  a  judgment  entered  in  favor  of  the  defendants  for* 
costs,  and  the  position  taken  was  that  the  amount  of  this 
judgment  constituted  the  measure  of  the  relief  to  be  ad 
ministered.  The  supreme  court  say:  There  are  several 
decisions  of  this  court  holding  that  a  defendant  in  replevin, 
in  order  to  render  the  sureties  upon  the  undertaking  liable 
for  the  value  of  the  property,  must  demand  a  return  in  the 
answer,  and  obtain  a  judgment  directing  it.  In  Chambers 
vs.  Waters  (7  Cal.  390),  the  court  said:  "In  the  case  between 
Waters  and  Hill,  if  the  latter  intended  to  hold  Waters  and 
his  sureties  responsible  upon  the  undertaking,  either  for  a 
return  of  the  property  or  its  value,  he  should  have  claimed 
a  return,  and  taken  his  judgment  accordingly.  Having 
failed  to  do  this,  the  payment  of  the  judgment,  as  taken,  is 
a  complete  discharge,"  etc.  There  are  other  cases  to  the, 

same  effect;  but  in  Ginica  vs.  Atwood  (8  Cal.  446),  where  a 


380  JUSTICES'  TREATISE. 

nonsuit  had  been  granted,  it  was  held  that  section  one 
hundred  and  seventy-seven  of  the  practice  act,  upon  which 
the  previous  decisions  were  based,  did  not  apply.  The  sec 
tion  provides  that  "  In  an  action  for  the  recovery  of  specific 
personal  property,  if  the  property  has  not  been  delivered  to 
the  plaintiff  or  the  defendant,  by  his  answer,  claim  a  return 
thereof,  the  jury,  if  their  verdict  be  in  favor  of  the  plaintiff, 
or  if,  being  in  favor  of  the  defendant,  they  also  find  that  he 
is  entitled  to  a  return  thereof,  shall  find  the  value  of  the 
property,  and  may  at  the  same  time  assess  the  damages,  if 
any  are  claimed  in  the  complaint  or  answer,  which  the  pre 
vailing  party  has  sustained  by  reason  of  the  taking  or 
detention  of  such  property."  A  dismissal  stands  upon  the 
same  footing  as  a  nonsuit,  leaving  the  parties  to  settle  in  an 
action  upon  the  undertaking  those  matters  which,  if  the 
original  suit  were  prosecuted,  it  would  be  necessary  to 
determine  in  the  first  instance.  Such  matters  include,  of 
course,  the  right  of  the  defendant  to  a  return  of  the  prop 
erty,  and  as  the  opportunity  to  obtain  a  judgment  for  its 
return  is  taken  away  by  the  failure  to  prosecute,  he  is  en 
titled  to  compensation  in  damages.  A  failure  to  prosecute 
is  a  breach  of  the  undertaking,  and  the  legal  and  necessary 
result  is  that  the  sureties  to  the  undertaking  are  liable  for 
whatever  injury  the  defendant  has  sustained.  In  this  case, 
it  appears  that  a  return  of  the  property  was  not  demanded 
in  the  replevin  suit,  but  we  think  the  defendants  are  not  in 
a  position  to  take  advantage  of  this  point.  The  suit  was 
not  tried,  but  abandoned  and  dismissed,  and  under  the 
circumstances  it  is  immaterial  what  the  pleadings  in  the 
case  were.  21  Gal.  279,  280. 

Effect  of  the  Undertaking. 

-  SEC.  33.  The  effect  of  a  replevin  bond  under  our  statute 
is  not  to  divest  either  the  title  or  the  lien  of  the  other  party. 
The  contest  itself  is  about  specific  personal  property.  The 
recovery  of  the  thing  itself,  and  not  damages  in  lieu  thereof, 
is  the  primary  object  of  the  suit.  The  value  is  recovered 
only  as  an  alternative  when  delivery  of  the  specific  prop- 
.erty  cannot  be  had.  The  property  is  required  to  be  par 
ticularly  described  in  the  execution.  If  the  title  could  be 


ACTIONS  TO   RECOVER  PERSONAL  PROPERTY.  381 

divested  by  the  delivery  of  tlie  bond,  the  primary  object  of 
the  suit  could  be  defeated.  The  unsuccessful  party  could 
always  make  his  election  to  keep  the  property  or  pay  the 
value.  But  this  advantage  was  never  intended  to  be  given 
by  the  statute  to  the  party  confessedly  in  the  wrong.  The 
effect  of  the  bond  is  simply  to  give  the  party  the  possession 
of  the  property  pending  the  litigation.  The  possession  is 
only  temporary.  It  does  not  divest  the  title  or  discharge 
any  prior  lien.  The  title  is  not  changed.  No  sale  made 
by  the  party  in  possession  can  convey  any  title  to  the  pur 
chaser.  And  if  the  title  is  not  changed,  neither  could  any 
prior  lien  be  effected  in  any  way.  The  language  of  our 
statute  is  very  strong.  The  sheriff  is  commanded  to  deliver 
the  possession  of  the  property  particularly  described  in  the 
execution,  and  if  a  delivery  cannot  be  had,  then  to  make 
the  assessed  value.  There  is  no  reservation  anywhere  in 
favor  of  innocent  purchasers.  The  property  remains  in  the 
custody  of  the  law,  and  all  parties  must  take  notice.  It  is 
certain  that  the  unsuccessful  party  may  deliver  the  property 
and  discharge  himself  from  so  much  of  the  judgment  as  is 
made  up  by  the  assessed  value.  The  very  reason  why  he 
may  do  this  is  because  the  suit  is  about  that  specific  prop 
erty,  and  because  the  title  is  not  affected  by  the  replevin 
bond.  But  where,  property  attached  is  released  upon  the 
bond  of  the  defendant,  he  cannot  discharge  himself  or  his 
sureties  by  a  delivery  to  the  sheriff  of  the  same  property, 
for  the  reason  that  the  lien  is  gone.  11  Cat.  277-279. 

When  Defendant  entitled  to  Return  of  Property  after  Judgment. 

SEC.  34.  "W.  sued  R.  to  recover  certain  personal  prop 
erty,  and  at  the  time  of  commencing  the  action  upon  the 
usual  affidavit,  bond  and  order,  procured  the  property  to 
be  taken  from  the  defendant  and  delivered  to  him.  From 
the  pleadings  and  evidence,  it  appeared  that  the  property 
had  been  mortgaged  by  W.-to  R.  to  secure  a  loan,  and  that 
after  the  commencement  of  the  action,  plaintiff  had  ten 
dered  to  R.  the  amount  of  the  debt  and  interest,  and  was 
still  ready  to  pay  the  same ;  it  was  held,  that  R.  being  a 
mortgagee  was  entitled  to  the  possession  of  the  property 
when  the  action  was  commenced,  and  that  he  should  have 


382  .JUSTICES'  TREATISE. 

judgment  in  his  favor  for  costs,  but  that  under  the  offer  of 
plaintiff  to  pay  the  mortgage  debt,  R.  was  not  entitled  to  a 
judgment  for  the  return  of  the  property  to  him.  20  Gal. 
615.  Where  the  defendant  in  a  replevin  suit  failed  to  claim 
the  return  of  the  property  in  his  answer,  and  on  the  trial 
the  jury  found  a  verdict  for  the  defendant,  on  which  the 
court  rendered  judgment  against  plaintiffs  for  costs,  which 
was  paid :  it  was  held,  that  the  payment  of  the  judgment, 
as  taken,  was  a  complete  discharge  of  plaintiff's  sureties  in 
the  undertaking.  7  CaL  390. 

Defendant's  Exceptions  to  Sureties  on  Undertaking. 

SEC.  35.  The  defendant  may,  within  two  days  after  the 
service  of  a  copy  of  the  affidavit  and  undertaking,  give 
notice  to  the  officer  that  he  excepts  to  the  sufficiency  of  the 
sureties.  If  he  fails  to  do  so,  he  shall  be  deemed  to  have 
waived  all  objections  to  them.  When  the  defendant  ex 
cepts,  the  sureties  shall  justify  on  notice  before  the  justice  ; 
and  the  officer  shall  be  responsible  for  the  sufficiency  of  the 
sureties  until  the  objection  to  them  is  either  waived  as  above 
provided  or  until  they  justify.  If  the  defendant  except 
to  the  sureties,  he  cannot  reclaim  the  property  as  provided 
in  the  next  section.  Pr.  Act,  560  ;  Gen.  Laws,  5491. 

When  Defendant  may  Require  Return  of  Property. 

SEC.  36.  At  any  time  before  the  delivery  of  the  prop 
erty  to  the  plaintiff  the  defendant  may,  if  he  do  not  except 
to  the  sureties  of  the  plaintiff,  require  the  return  thereof, 
upon  giving  to  the  officer  a  written  undertaking,  executed 
by  two-  or  more  sufficient  sureties,  to  the  effect  that  they 
are  bound  in  double  the  value  of  the  property,  as  stated  in 
the  affidavit  of  the  plaintiff,  for  the  delivery  thereof  to  the 
plaintiff,  if  such  delivery  be  adjudged,  and  for  the  payment 
to  him  of  such  sum  as  may  for  any  cause  be  recovered 
against  the  defendant.  If  a  return  of  the  property  be  not 
so  required  within  two  days  after  the  taking  and  service  of 
notice  to  the  defendant,  it  shall  be  delivered  to  the  plaintiff, 
except  as  provided  in  this  chapter.  Pr.  Act,  561 ;  Gen.  Laivs, 
5492. 


ACTIONS  TO  BECOVEB  PERSONAL  PROPERTY.  383 

Undertaking  on  a  Return  to  Defendant  on   Claim  and  Delivery  of 
Personal  Property. 

SEC.  37.  The  following  is  a  form  of  undertaking  on  a 
return  to  defendant  on  claim  and  delivery  of  personal  prop 
erty: 

In  the  justice's  court  of  ....  township,  in  the  county  of  . . . . ,  state  of  .... 


plaintiff, 
against 


defendant. 

"Whereas,  ........  ,  constable  of  ....    township,  in  the  county  of  .  .  .  .  , 

under  and  by  virtue  of  an  order  and  requirement  duly  made  and  issued  in 
the  above  entitled  action  and  to  him  directed,  did,  on  the  ....  day  of  .  .  .  .  , 

A.D.  18  .  .  ,  take  from  the  possession  of  the  defendant  in  said  action  the  fol 
lowing  personal  property  to  wit  :  [description  of  the  property].  And 
whereas,  the  said  defendant  being  desirous  that  the  said  property  be  re 
turned  to  him  by  the  said  constable,  has  not  excepted  to  the  sureties  of  the 
said  plaintiff,  but  has  required  the  return  of  said  property  upon  giving  this 
undertaking. 

Now,  therefore,  we,  the  undersigned,  ........  and  ........  ,  as  sureties, 

in  consideration  of  the  premises,  and  of  the  said  return  of  the  said  property 
by  the  said  constable  to  the  said  defendant,  do  hereby  undertake,  promise 
and  acknowledge,  to  the  effect  that  we  are  jointly  and  severally  bound  unto 
the  said  plaintiff  in  the  sum  of  ....  dollars  (being  double  the  value  of  said 

property,  as  stated  in  the  affidavit  of  the  said  plaintiff),  for  the  delivery 
thereof  to  the  said  plaintiff,  if  stich  delivery  be  adjudged,  and  for  the  pay 
ment  to  him  of  such  sum  as  may  for  any  cause  be  recovered  against  the  said 
defendant. 

In  witness  whereof,  we  have  hereunto  set  our  hands  and  seals,  this  .... 
day  of  ----  ,  A.D.  18.  . 


............       [1.8.] 

State  of  ......  ,  | 

county  of  ......  j  ss* 

........  and  ........  ,  the  sureties  in  the  within  undertaking,  being  duly 

sworn,  each  for  himself,  says  :  That  he  is  a  resident  and  householder  within 
the  said   ....  county,  and  is  worth  double  the  amount  stated  in  the  said 

undertaking  over  and  above  all  his  debts  and  liabilities,  exclusive  of  property 
exempt  from  execution. 


Subscribed  and  sworn  to  before  me,  this  ....  day  of  . . . . ,  A.D.  18 . . 

Justice  of  the  peace. 

Justification  of  Defendant's  Sureties. 
SEC.  38.     The  defendant's  sureties,  upon  reasonable  no- 


384  JUSTICES'  TREATISE. 

tice  to  the  plaintiff,  shall  justify  before  the  justice;  and  up 
on  such  justification,  the  officer  shall  deliver  the  property 
to  the  defendant.  The  officer  shall  be  responsible  for  the 
defendant's  sureties  until  they  justify  or  until  (the  justifica 
tion  is  completed  or  expressly  waived,  and  may  retain  the 
property  until  that  time,  but  if  they,  or  others  in  their 
place,  fail  to  justify  at  the  time  appointed,  he  shall  deliver 
the  property  to  plaintiff.  Pr.  Act,  562;  Gen.  Laws,  5493. 

Form  of  Certificate  of    Justification  of    Sureties    and  approval  of 
foregoing  Affidavit,   to  be  indorsed  Thereon. 

SEC.  39.  The  following  is  a  form  of  certificate  of  justifi 
cation  of  sureties  and  approval  of  foregoing  affidavit,  to  be 
indorsed  thereon : 

On  the  ....  day  of  . . . . ,  A.D.  18 . . ,  the  sureties  within-named  appeared  per 
sonally  before  me,  and  were  examined  on  oath  on  the  part  of  the  plaintiff, 
touching  their  sufficiency,  in  such  manner  as  I,  in  my  discretion,  thought 
proper,  which  examination  was  reduced  to  writing,  and  subscribed  by  the 
sureties,  and  is  hereto  annexed;  and  I  did  then  and  there  find  the  said  sure 
ties  sufficient,  wherefore  I  do  allow  this  present  undertaking. 


Justice  of  the  peace. 

How  Officer  to  Take  and  Keep  Property. 

SEC.  40.  If  the  property  or  any  part  thereof  be  concealed 
in  a  building  or  inclosure,  the  officer  shall  publicly  demand 
its  delivery;  and  if  it  be  not  delivered,  he  shall  cause  the 
building  or  inclosure  to  be  broken  open,  and  take  the  prop 
erty  into  his  possession.  When  the  officer  shall  have  taken 
property,  as  in  this  chapter  provided,  he  shall  keep  it  in  a 
secure  place,  and  deliver  it  to  the  party  entitled  thereto, 
upon  receiving  his  lawful  fees  for  taking  and  his  necessary 
expenses  for  keeping  the  same.  Pr.  Act,  563,  564;  Gen. 
Laws,  5494,  5495. 

Claims  by  Third  Persons. 

SEC.  41.  If  the  property  taken  be  claimed  by  any  other 
person  than  the  defendant  or  his  agent,  and  such  person 
make  affidavit  of  his  title  thereto  or  right  to  the  possession 
thereof,  -stating  the  grounds  of  such  title  or  right,  and  serve 
the  same  upon  the  officer,  the  officer  shall  not  be  bound  to 


CONTEMPTS.  385 

keep  the  property  or  deliver  it  to  the  plaintiff,  unless  the 
plaintiff,  on  demand  of  him  or  his  agent,  indemnify  the 
officer  against  such  claim  by  %n  undertaking,  executed  by 
two  sufficient  sureties,  accompanied  by  their  affidavits,  that 
they  are  each  worth  double  the  value  of  the  property  as 
specified  in  the  affidavit  of  the  plaintiff,  over  and  above 
their  debts  and  liabilities,  exclusive  of  property  exempt 
from  execution,  and  are  freeholders  or  householders  of  the 
county;  and  no  claim  to  such  property  by  any  other  person 
than  the  defendant  or  his  agent  shall  be  valid  against  the 
officer  unless  so  made.  Pr.  Act,  565;  Gen.  Laivs,  5496. 

Officer's  Return. 

SEC.  42.  The  officer  shall  return  the  order  and  affidavit, 
with  his  proceedings  thereon,  to  the  justice  within  five  days 
after  taking  the  property  mentioned  therein.  Gen.  Laws, 
5497. 


CHAPTER,     XXXVIII. 

CONTEMPTS. 

SECTION  1.  By  the  common  law,  every  court  has,  while 
engaged  in  the  performance  of  its  lawful  functions,  as  an 
incident  to  its  judicial  character,  the  authority  to  preserve 
order,  decency  and  silence,  without  which  no  court  could 
vindicate  or  support  the  laws  intrusted  to  its  administration. 
The  power  thus  vested  in  a  court  is  necessarily  of  an  arbi 
trary  nature,  and  should  be  used  with  great  prudence  and 
caution.  A  judge  should  bear  in  mind  that  he  is  engaged, 
not  so  much  in  vindicating  his  own  character,  as  in  promot 
ing  the  respect  due  to  the  administration  of  the  laws ;  and 
this  consideration  should  induce  him  to  receive  as  satisfac 
tory  any  reasonable  apology  for  an  offender's  conduct.  1 
Gal.  153. 

SEC.  2.  A  justice  may  punish  as  for  contempt,  persons 
guilty  of  the  following  acts,  and  no  other : 

1st.  Disorderly,  contemptuous  or  insolent,  behavior  to 
wards  the  justice  while  holding  the  court,  tending  to  inter 
rupt  the  due  course  of  a  trial  or  other  judicial  proceeding. 
49 


386  JUSTICES'  TREATISE. 

2d.  A  breach,  of  the  peace,  boisterous  conduct  or  violent 
disturbance,  in  the  presence  of  the  justice  or  in  the  imme 
diate  vicinity  of  the  court  held  by  him,  tending  to  interrupt 
the  due  course  of  trial  or  other  judicial  proceeding. 

3d.  Disobedience  or  resistance  to  the  execution  of  a  law 
ful  order  or  process,  made  or  issued  by  him. 

4th.  Disobedience  to  a  subpena  duly  served,  or  refusing 
to  be  sworn  or  answer  as  a  witness. 

5th.  Rescuing  any  person  or  property  in  the  custody  of 
any  officer  by  virtue  of  an  order  or  process  of  the  court 
held  by  him. 

SEC.  3.  A  justice  may  issue  a  warrant  for  abusive  words 
in  relation  to  his  office  and  threats  of  personal  injury  to 
himself,  and  require  the  party  to  give  security  for  his  good 
behavior.  2  Hill  (S.  C.)  410. 

SEC.  4.  The  disobedience  of  an  order  of  court  is  only  a 
contempt  when  it  is  a  lawful  order.  7  Cal.  179. 

SEC.  5.  It  will  not  be  contended  that  parties  may  not 
be  punished  for  resistance  or  disobedience  to  erroneous 
orders,  or  that  the  officer  executing  final  process,  issued  on 
an  erroneous  judgment,  would  make  himself  liable  as  a 
trespasser.  In  the  examination  of  this  question  we  should 
be  careful  to  distinguish  between  the  erroneous  exercise  of 
a  power  conferred  by  law,  and  the  usurpation  of  power.  If 
the  district  court  has  jurisdiction,  under  any  circumstances, 
to  make  a  certain  order,  the  issuance  of  such  order  in  an 
improper  case  would  be  error  certainly,  which  an  appellate 
court  would  correct,  but  would  not  be  an  usurpation  of 
power  or  an  excess  of  jurisdiction.  5  Cal.  495. 

SEC.  6.  A  commitment  for  contempt,  for  refusing  to 
obey  an  order  of  court  commanding  the  imprisonment  of 
the  party  in  contempt  until  he  shall  comply  with  the  order, 
should  set  forth  that  it  is  in  the  power  of  the  party  to  com 
ply.  6  Cal  320. 

SEC.  7.  Courts  are  the  exclusive  judges  of  their  own  con 
tempts;  still,  by  our  statute,  a  party  cannot  be  imprisoned 
for  neglecting  or  refusing  to  perform  an  act  where  it  ap 
pears  that  it  is  not  in  his  power  to  perform  the  same.  6 
Cal  318. 

SEC.  8.     "When  a  contempt  is  committed  in  the  immediate 


CONTEMPTS.  387 

view  and  presence  of  the  justice,  it  may  be  punished  sum 
marily,  for  which  an  order  shall  be  made  reciting  the  facts, 
as  occurring  in  such  immediate  view  and  presence,  adjudg 
ing  that  the  person  proceeded  against  is  thereby  guilty  of  a 
contempt,  and  that  he  be  punished  as  therein  prescribed. 
When  the  contempt  is  not  committed  in  the  immediate  view 
and  presence  of  the  justice,  a  warrant  of  arrest  may  be  is 
sued  by  such  justice,  on  which  the  person  so  guilty  may  be 
arrested  and  brought  before  the  justice  immediately,  when 
an  opportunity  to  be  heard  in  his  defense  or  excuse  shall  be 
given.  The  justice  may  thereupon  discharge  him,  or  may 
convict  him  of  the  offense.  A  justice  may  punish  for  con 
tempts,  by  fine  or  imprisonment  or  both;  such  fine  not  to 
exceed  in  any  case  one  hundred  dollars,  and  such  imprison 
ment  one  day.  The  conviction,  specifying  particularly  the 
offense  and  the  judgment  thereon,  shall  be  entered  by  the 
justice  in  his  docket.  Gen.  Laws,  617,  618. 

SEC.  9.  The  judgments  and  orders  of  courts  or  judges, 
on  the  subject  of  contempts  are,  by  our  statutes,  declared 
to  be  final  and  conclusive.  5  Cal.  495. 

SEC.  10.  A  justice  who  has  fined  a  person  for  contempt 
of  court,  has  power  to  imprison  him  until  payment  of  the 
fine  and  costs.  19  III.  613. 

^ 

SEC.  11.  The  power  of  a  justice  to  punish  persons  guilty 
of  contempt  existed  at  common  law.  8  Johns.  44. 

SEC.  12.  Where  the  contempt  is  committed  in  the  pres 
ence  of  the  court,  and  the  offender  has  not  left  court,  he 
may  be  at  once  called  upon  to  answer  for  it.  If,  however, 
he  has  left  the  court,  the  warrant  provided  by  the  statute 
will  be  necessary  to  bring  him  up  to  answer.  This  may  be 
in  the  following  form  : 

Warrant  of  Arrest. 

county,  | 

town  of J  ss> 

The  people  of  the  state  of to  any  constable  of  said  county,  greeting: 

We  command  you  to  apprehend and  bring  him  before , 

esq.,  one  of  the  justices  of  the  peace  of  the  said  county,  at  his  dwelling- 
house  in  said  town,  to  show  cause  why  he,  the  said ,  should  not  be 

convicted  of  a  criminal  contempt,  alleged  to  have  been  committed  on  the 
....  day  of  .  . . . ,  before  the  said  justice,  while  engaged  as  a  justice  of  the 
pi  ace,  in  ....  judicial  proceedings. 
Witness  our  said  justice,  at  the  town  aforesaid,  the  ....  day  of  . . . .,  18. . 

> 

Justice  of  the  peace 


388  JUSTICES'  TREATISE.  , 

CHAPTER    XXXIX. 
COSTS. 

SECTION  1.  Costs  are  an  incident  to  the  judgment,  to  be 
taxed  by  the  clerk  or  court,  and  cannot  be  given  by  the 
jury  by  way  of  damages.  6  Cal.  286. 

SEC.  2.  Costs,  by  way  of  indemnity,  ought  not  to  be 
taxed  in  case  of  a  nonsuit.  The  statute  looks  to  an  actual 
determination  of  the  cause  upon  its  merits.  So  .where  an 
action  has  been  commenced  against  several  defendants,  and 
there  has  been  a  judgment  in  their  favor,  they  are  not  all 
entitled  to  recover  separate  costs  to  the  amounts  allowed  by 
the  act,  but  can  only  recover  jointly,  as  though  there  had 
been  but  one  defendant.  5  Cal.  61. 

SEC.  3.  The  affidavit  accompanying  the  bill  of  costs  may 
be  made  by  some  person  other  than  the  party,  by  his  attor 
ney  or  some  one  else,  in  his  behalf  who  had  knowledge  of 
the  facts.  3  Cal.  119. 

SEC.  4.  Where  the  original  bill  of  costs  is  filed  within 
the  time  prescribed  by  the  statute,  an  amendment  allowed 
after  the  time  relates  back  to  the  time  of  filing  the  original, 
of  which  it  forms  merely  a  part.  3  Cal.  118. 

SEC.  5.  In  an  action  commenced  before  a  justice  on  the 
sixth  of  September,  the  jury  disagreed  twice.  During  a 
third  trial,  the  justice's  term  expired  on  the  thirtieth  of  No 
vember,  and  it  was  agreed  that  the  cause  should  go  on,  and 
that  the  parties  would  abide  the  result;  but  the  jury  disa 
greed,  and  nothing  further  was  done :  Held,  that  no  action 
lay  for  the  defendant's  taxable  costs.  2  Wms.  (28  Vt).  486. 

SEC.  6.  An  attorney  has  no  lien  upon  a  judgment  recov 
ered  by  him  in  favor  of  his  client,  for  a  quantum  meruit  com 
pensation  for  his  services.  Such  lien  extends  only  to  costs 
given  by  statute.  In  this  state  we  have  no  statute  giving 
costs  to  attorneys,  and  they  must  consequently  recover  for 
their  services  in  the  ordinary  mode.  1  Cal.  332. 

SEC.  7.  The  costs  upon  an  appeal  are  properly  the  costs 
in  this  court,  and  the  costs  of  making  up  the  appeal  in  the 
court  below,  including  the  cost  of  making  out  the  trans 
cript.  11  Cal.  341. 


DAMAGES.  389 

CHAPTER     XL. 
DAMAGES. 

SECTION  1.  The  amount  of  damages  is  simply  a  question 
of  fact  within  the  province  of  the  jury.  3  Col.  58,  59. 

SEC.  2.  In  actions  for  damages,  the  rule  is,  that  the 
proof  of  damage  may  extend  up  to  the  time  of  the  verdict, 
as  to  all  facts  which  flow  as  a  natural  result  from  the  injury 
for  which  suit  is  brought.  17  Gal-  566. 

SEC.  3.  Contemplated  and  contingent  profits  cannot  be 
allowed  as  damages.  Thus,  where  the  calculation  is  based 
upon  the  fact  that  the  product  of  twenty  acres  of  land  was 
worth  nine  thousand  dollars,  from  which  arbitrators  in 
ferred  the  product  of  two  hundred  acres  would  have  been 
worth  ninety  thousand  dollars — the  damages  thus  estimated 
are  too  remote  and  speculative  and  involve  too  many  con 
tingencies.  2  Cal.  78. 

SEC.  4.  In  case  of  negligence  simply,  the  rule  governing 
the  measure  of  damages  is  to  allow  the  actual  damages. 
The  allowance  of  smart  money  in  such  cases  is  improper. 
4  Cal.  299. 

SEC.  5.  The  rule  is,  when  property  converted  has  a  fixed 
value,  the  measure  of  damages  is  that  value,  with  legal 
interest  from  the  time  of  the  conversion  ;  where  the  value  is 
fluctuating  the  plaintiff  may  recover  the  highest  value  at 
the  time  of  the  conversion,  or  at  any  time  afterwards.  9 
Cat.  563. 

SEC.  6.  The  amount  of  damages  is  for  the  jury,  who 
may  give  the  value  at  the  time  of  the  conversion,  or  any 
subsequent  time  in  their  discretion,  because  the  plaintiff 
might  have  had  a  good  opportunity  of  selling  the  goods  if 
they  had  not  been  detained.  The  jury  are  not  at  all  limited 
in  giving  their  verdict  by  whafr  was  the  price  of  the  article 
on  the  day  of  the  conversion.  9  Cal.  563. 

SEC.  7.  In  actions  for  personal  torts,  the  law  does  not 
fix  any  precise  rule  of  damages,  but  leaves  their  assessment 
to  the  unbiassed  judgment  of  the  jury.  In  such  cases,  the 
court  will  not  disturb  the  verdict  of  a  jury  on  the  ground 
that  the  damages  are  excessive,  unless  the  amount  of  dam- 


390  JUSTICES'  TREATISE. 

age  is  so  disproportionate  to  the  injury  proved  as  to  justify 
the  conclusion  that  the  verdict  is  not  the  result  of  the  cool, 
dispassionate  consideration  of  the  jury.  24  Col.  513. 

SEC.  8.  In  an  action  for  damages  for  cutting  down  grow 
ing  trees,  the  measure  of  damages  is  not  the  actual  value 
of  the  trees  for  firewood,  but  the  damage  done  to  the  land* 
by  reason  of  destroying  them.  This  damage  should  be 
estimated  by  .all  the  circumstances,  and  the  purposes  for 
which  the  trees  were  used  or  designed,  and  not  according 
to  the  speculative  or  fancied  ideas  that  the  jury  or  plaintiff 
might  have  drawn  of  their  worth.  6  CaL  162,  163. 

SEC.  9.  The  loss  of  time,  value  of  services  and  wages,  of 
employes,  caused  by  the  failure  of  a  party  to  perform  this 
contract,  are  -damages  by  no  means  remote,  but  on  the  con 
trary  strictly  proximate  and  immediate,  and  ought  to  be 
considered  and  allowed.  3  CaL  259,  260. 

SEC.  10.  An  action  to  recover  damages  for  collision  can 
not  be  sustained  where  the  injury  of  which  the  plaintiff 
complains  has  resulted  from  the  negligence  of  both  parties; 
so  held,  where  a  brig  lying  in  the  harbor  of  San  Francisco, 
in  the  usual  track  of  bay  and  river  steamers,  without  hav 
ing  any  light  hung  out,  was  run  into  and  damaged  by  a 
river  steamer  when  entering  the  harbor  on  her  usual  course 
and  with  diminished  speed,  it  appearing  that  there  was  no 
intentional  wrong  on  the  part  of  the  defendants ;  and  held 
further,  that  if  ordinary  prudence  required  the  brig  to  show 
a  light,  the  fact  that  it  was  a  common  practice  in  the  harbor 
to  neglect  to  do  so,  was  no  excuse,  it  appearing  that  the 
brig  lay  in  a  more  dangerous  situation  than  most  of  the 
shipping  in  the  harbor.  1  Cat.  365,  366. 

SEC.  11.  In  a  suit  for  damages  for  the  failure  of  the 
defendants  to  deliver  goods  according  to  contract,  the  true 
rule  of  damages  is  the  difference  between  the  price  agreed 
on  between  the  parties  and  4he  market  value  of  the  goods 
at  the  time  of  the  breach  of  the  contract.  Testimony 
should  not  be  admitted  to  prove  the  speculative  profits 
of  the  plaintiffs.  Where  the  contract  was  for  the  cargo, 
or  all  the  goods  of  a  given  description  in  a  given  vessel, 
the  fact  that  there  were  no  other  like  goods  in  the  market 
did  not  warrant  the  admission  of  evidence  showing  what 


DAMAGES.  391 

they  were  worth  in  broken  packages,  much  less  testimony 
to  prove  plaintiff's  amount  of  sales  and  profits.  The  value 
of  a  cargo  of  similar  goods  might  have  been  ascertained  by 
the  testimony  of  competent  merchants,  and  the  difference 
between  the  value  so  estimated  and  the  contract  price 
would  have  been  the  true  measure  of  damages.  3  Cal. 
375,  376. 

SEC.  12.  Where  the  property,  the  subject  of  a  suit,  is 
delivered  and  accepted  pending  the  suit — that  is,  before 
verdict — the  damages  should  be  merely  nominal ;  but  if 
the  goods  are  only  delivered  after  verdict,  it  must  be  as 
sumed  that  the  delivery  was  in  pursuance  of  the  verdict 
which  had  already  determined  the  rights  of  the  parties, 
and  the  difference  in  value  of  the  property  between  the 
time  of  detention  and  of  delivery  is  not  the  true  measure 
of  damages.  The  most  liberal  rule  would  allow  the  high 
est  value  of  the  goods  at  any  time  between  the  conversion 
and  the  judgment  and  interest  thereupon  ;  but  where  the 
plaintiff  accepts  the  goods,  he  has  elected  to  take  them  in 
lieu  of  their  value,  and  the  only  damages  he  can  recover 
would  be  the  interest  upon  their  highest  value,  except  in 
cases  where  some  special  damage  is  specifically  averred  in 
the  complaint.  5  Gal  328,  329. 

SEC.  13.  The  rule  of  damages  against  a  purchaser  for 
not  receiving  goods  according  to  contract,  is  the  difference 
between  the  contract  price  and  the  market  value  at  the 
time  of  the  breach  of  the  contract.  4  Cal.  411. 

SEC.  14.  If  a  man  sells  his  property  or  contracts  with 
another,  on  good  consideration,  that  the  latter  shall  pay 
his  debt^  for  a  breach  of  the  obligation,  the  measure  of 
damages  would  be  the  amount.  The  law  supposes  in  such 
a  case  that  the  payment  of  the  debt  is  equivalent  in  value 
to  the  debtor  to  so  much  money  in  hand.  13  Cal.  524. 

SEC.  15.  In  an  action  against  a  common  carrier  for  non- 
performance  of  his  contract  to  carry  a  passenger,  remote 
and  contingent  damages  cannot  be  recovered.  So  held  in 
a  case  where  the  plaintiff,  through  the  violation  of  the 
agreement  of  the  defendants,  was  detained  at  New  Orleans 
and  at  Panama,  on  his  way  to  California,  an  unreasonable 
length*  of  time,  and  the  court  charged  the  jury  that  the 


392  JUSTICES'  TREATISE. 

measure  of  damages  would  be  the  wages  at  the  then  rates 
in  San  Francisco  during  the  period  of  such  detention.  1 
Cat  353. 

SEC.  16.  In  an  action  against  a  common  carrier,  the  rule 
of  damages  is  the  value  of  the  goods  at  the  port  of  delivery, 
and  not  the  invoice  price  or  the  value  at  the  port  of  ship 
ment.  1  Cat.  110. 

SEC.  17.  In  an  action  against  a  common  carrier  for  the 
non-delivery  of  goods,  the  value  thereof  at  the  port  of  dis 
charge  is  the  proper  measure  of  damages.  1  Cat.  214. 

SEC.  18.  This  is  an  action  to  abate  a  nuisance  and  for 
damages.  The  nuisance  was  caused  by  the  digging  of  a 
ditch  upon  the  land  of  the  plaintiff.  The  court  ordered  the 
nuisance  to  be  abated,  and  awarded  as  damages  a  sum  suffi 
cient  to  pay  the  expenses  of  filling  up  the  ditch  and  restor 
ing  the  land  to  its  original  condition.  In  assessing  the 
damages  the  court  proceeded  upon  an  incorrect  basis,  and, 
of  course,  arrived  at  an  erroneous  result.  The  plaintiff 
could  not  recover  beyond  the  injury  sustained,  and  it  was 
improper  to  award  compensation  for  an  expense  which 
might  never  be  incurred.  It  is  possible  the  cost  of  filling 
up  the  ditch  may  far  exceed  any  injury  resulting  from  it  in 
its  present  condition,  and  in  that  case  it  is  not  probable 
that  the  amount  recovered  would  ever  be  used  for  that  pur 
pose.  There  are,  undoubtedly,  cases  in  which  it  is  proper 
to  allow  prospective  damages;  but  it  is  certain  that  the 
present  case  does  not  belong  to  that  class.  "If  the  case 
be  tort,"  says  Sedgwick,  "and  the  wrong  done  before  suit 
brought,  the  plaintiff  is  not  limited  solely  to  the  consequen 
tial  damage  which  has  actually  occurred  up  to  the  trial  of 
the  cause,  but  he  may  go  on  to  claim  relief  for  the  prospect 
ive  damage  which  can  then  be  estimated  as  reasonably  cer 
tain  to  occur."  Sedg.  on  Dam.,  109.  It  is  evident  that  re 
lief  of  this  character  cannot  be  obtained  unless  it  appear 
that  the  party  will  be  subjected  to  the  particular  loss  or 
injury  for  which  he  demands  compensation.  17  Ccd.  617. 

SEC.  19.  In  an  action  against  a  sheriff  for  damages  fo*r 
the  wrongful  seizure  of  the  goods,  the  true  measure  of  dam 
ages  is  the  value  of  the  goods  at  the  time  of  the  taking.  23 
Gal  349.  • 


DEPUTATION. 

CHAPTER     XLI. 
DEPUTATION. 

SECTION  1.  The  summons,  execution  and  every  other 
paper,  made  or  issued  by  a  justice,  except  a  subpena,  shall 
be  filed  without  a  blank  left  to  be  filled  by  another,  other 
wise  it  shall  be  void.  Gen.  Laws,  5542. 

SEC.  2.  Though  process  issued  by  a  justice  may  be  al 
tered  by  his  direction,  yet  a  general  authority  by  him  to  a 
constable  to  alter  the  dates  of  executions  instead  of  renew 
ing  them  or  to  fill  up  or  alter  process,  is  void.  10  Johiw. 
405.  . 

SEC.  3.  A  justice  may  delegate  his  power  to  issue  an 
execution  on  a  judgment  rendered,  and  the  power  need  not 
be  in  writing.  3  Ala.  481. 

SEC.  4.  In  case  of  the  sickness,  other  disability  or  nec 
essary  absence,  of  a  justice  on  a  return  of  a  summons  or  at 
the  time  appointed  for  a  trial,  another  justice  of  the  same 
township  or  city  may,  at  his  request,  attend  in  his  behalf, 
and  shall  thereupon  become  vested  with  the  power,  for  the 
time  being,"  of  the  justice  before  whom  the  summons  was 
returnable.  In  that  case  the  proper  entry  of  the  proceed 
ings  before  the  attending  justice,  subscribed  by  him,  shall 
be  made  in  the  docket  of  the  justice  before  whom  the  sum 
mons  was  returnable.  If  the  case  be  adjourned,  the  justice 
before  whom  the  summons  was  returnable  may  resume  ju 
risdiction. 

SEC.  5.  The  justice,  may  at  the  request  of  a  party,  and 
on  being  satisfied  that  it  is  expedient,  specially  depute  any 
discreet  person  of  suitable  age, and  not  interested  in  the 
action,  to  serve  a  summons  or  execution,  with  or  without  an 
order  to  arrest  the  defendant,  or  with  or  without  a  writ  of 
attachment.  The  said  justice  shall  be  liable  on  his  official 
bond  for  all  official  acts  of  the  person  so  deputed.  Such 
deputation  shall  be  in  writing  on  the  process.  Gen.  Laws, 
5544. 

SEC.  6.     The  person  so  deputed  shall  have  the  authority 
of   a  constable  in  relation  to  the  service,   execution  and 
50 


394  JUSTICES'  TREATISE. 

return,  of  such  process,  and  shall  be  subject  to  the  same 
obligations.     Gen.  Laws,  5545. 
[For  form  of  deputation,  affidavit  and  order,  see  SUMMONS,  Chap.  LXXIX.] 

SEC.  7.  At  common  law,  a  justice  may  authorize  any 
person  he  pleases  to  be  his  officer.  Breese,  144. 

SEC.  8.  A  justice  cannot  delegate  any  part  of  his  official 
power  or  sfuthority  to  another.  9  Barb.  Sup.  Ct.  611. 

SEC.  9.  Yet  it  seems  that  he  may  depute  another  to  do 
a  specific  act,  without  vesting  in  him  any  discretion.  9 
Barb.  Sup.  Ct.  611. 

SEC.  10.  An  appointment  by  a  justice  of  the  peace  to 
serve  process  is  a  judicial  act  and  cannot  be  done  by  proxy. 
6  Vi.  509. 

SEC.  11.  A  deputation,  by  a  justice  to  a  person  to  exe 
cute  a  legal  process,  must  express  the  full  name  of  the 
person  deputized,  or  it  will  be  void  for  uncertainty,  and 
will  confer  no  authority  on  any  person.  11  Hampli.  71. 

SEC.  12.  A  justice  of  the  peace  has  no  authority  to 
direct  his  warrant  to  a  private  person,  unless  when  it  shall 
be  necessary,  and  that  necessity  is  expressed  in  the  warrant 
to  be  so  directed.  1  Mass.  488,  493. 

SEC.  13.  The  plaintiff,  who  was  improperly  ^ued  in  tres 
pass,  on  account  of  a  levy  by  a  deputy  constable,  and  who 
paid  the  judgment  rendered  against  him,  cannot  sue  the 
constable  on  his  bond  for  improperly  appointing  the  dep 
uty.  The  constable,  like  any  other  ministerial  officer,  has 
the  right  to  appoint  as  many  deputies  as  he  pleases.  The 
deputy  is  not  guilty  of  any  trespass  in  levying  by  virtue  of 
legal  process  in  his  hands.  The  plaintiff  paid  the  judgment 
against  him  for  the  trespass  in  his  own  wrong.  4  Cal.  188. 


DEPOSITIONS.  395 


CHAPTER     XLII. 


DEPOSITIONS. 


SECS.  SECS. 


WHO  MAY  TAKE 7-9 

NOTICE  TO  TAKE 10-18 

CEKTIFICATE  . .  .  19-22 


OBJECTIONS  TO 23-29 

ADMISSIBILITT  or 30-33 

WHEN  MAY  BE  USED  . .  .  34-35 


Who  may  Take. 

SECTION  1.  The  testimony  of  a  witness  in  this  state  may 
be  taken  by  deposition  in  an  action  at  any  time  after  the 
service  of  the  summons  or  the  appearance  of  the  defendant; 
and  in  a  special  proceeding,  after  a  question  of  fact  has 
arisen  therein,  in  the  following  cases : 

1st.  When  the  witness  is  a  party  to  the  action  or  proceed 
ing,  or  a  person  for  whose  immediate,  benefit  the  action  or 
proceeding  is  prosecuted  or  defended. 

2d.  When  the  witness  resides  out  of  the  county  in  which 
his  testimony  is  to  be  used. 

3d.  When  the  witness  is  about  to  leave  the  county  where 
the  action  is  to  be  tried,  and  will  probably  continue  absent 
when  the  testimony  is  required. 

4th.  Wlien  the  witness,  otherwise  liable  to  attend  the 
trial,  is  nevertheless  too  infirm  to  attend. 

Justices  of  the  peace  may  issue  commissions  to  take  the 
depositions  of  witnesses  out  of  the  state,  and  settle  inter 
rogatories  to  be  annexed  thereto  and  direct  the  manner  in 
which  the  commissions  shall  be  returned.  Pr.  Act,  428, 
620;  Gen.  Laws,  5362,  5551. 

SEC.  2.  Of  a  Party  to  an  Action. — The  testimony  of  a 
party  to  an  action  may  be  taken  by  deposition,  if  he  resides 
out  of  the  county  in  which  his  testimony  is  to  be  used, 
although  he  resides  within  less  than  thirty  miles  of  the 
place  of  trial.  Skidmore  vs.  Taylor,  29  Cal.  619. 

SEC.  3.  All  the  requisitions  of  the  statute  in  relation  to 
the  taking  of  depositions  must  be  strictly  complied  with, 
and  this  must  appear  upon  the  deposition  to  entitle  it  to 
admission.  Dye  vs.  Bailey,  2  Cal.  383. 

SEC.  4.     The  mode  of  taking  depositions,  pointed  out  by 


396  JUSTICES'  TREATISE. 

«. 

statute  is  in  derogation  of  the  common  law;  and  the  officers 
must  follow  the  statute  strictly.  2  CaL  383. 

SEC.  5.  Discretion  of  Court. — The  decision  of  a  motion 
to  suppress  the,  reading  of  a  deposition  rests  in  the  sound 
discretion  of  the  court,  who  must  decide  upon  the  sufficiency, 
or  otherwise,  of  the  grounds  upon  which  such  motion  is 
made.  Mils  vs.  Dunlap,  3  Gal.  94. 

SEC.  6.  Interpretation  of. — Where  a  deposition  is  taken, 
ex  parte,  though  after  notice,  and  the  witness  is,  therefore, 
not  subjected  to  a  cross  examination,  the  language  used  by 
him  will  be  suspiciously  regarded,  and  only  a  very  literal 
interpretation  given  to  it.  Spring  vs.  Hill  &  Carr,  6  Cal. 
17. 

"Who  May  Take. 

SEC.  7.     Either  party  may  have  the  deposition  taken  of 
a  witness  in  this  state  before  any  judge  or  clerk,  or  any  jus 
tice  of  the  peace  or  notary  public  in  this  state,  on  serving 
on  the  adverse  party  previous  notice  of  the  time  and  place 
of  examination,  together  with  a  copy  of  an  affidavit,  show 
ing  that  the  case  is  one  mentioned  in  the  last  section.     At 
any  time  during  the  forty  days  immediately  after  the  serv 
ice  of  summons  by  publication  has  been  completed,  and  at 
any  time  thereafter,  when  the  defendant  has  not  appeared, 
the  notice  required  by  this  section  may  be  served  on  the 
clerk  of  the  court  where  the  action  is  pending.     Such  no 
tice  shall  be  at  least  five  days,  and  in  addition,  one  day  for 
every  twenty-five  miles  of  the  distance  of  the  place  of  ex 
amination  from  the  residence  of  the  person  to  whom  the 
notice  is  given,  unless  for  a  cause  shown  a  judge,  by  order, 
prescribe  a  shorter  time.      When  a  shorter  time  is  pre 
scribed,  a  copy  of  the  order  shall  be  served  with  the  notice. 
Either  party  may  attend  such  examination  and  put  such 
questions,  direct  and  cross,  as  may  be  proper.     The  depo 
sition,  when  completed,  shall  be  carefully  read  to  the  wit 
ness  and  corrected  by  him  in  any  particular,  if  desired;  it 
shall  then  be  subscribed  by  the  witness,  certified  by  the 
judge  or  officer  taking  the  deposition,  inclosed  in  an  en 
velop  or  wrapper,  sealed  and  directed  to  the  clerk  of  the 
court  in  which  the  action  is  pending  or  such  person  as  the 
parties  in  writing  may  agree  upon,  and  either  delivered  by 


DEPOSITIONS.  397 

the  judge  or  officer  to  the  clerk  or  such  person,  or  trans 
mitted  through  the  mail  or  by  some  safe  private  opportuni 
ty;  and  thereupon  such  deposition  may  be  used  by  either 
'party  upon  the  trial  or  other  proceeding,  against  any  party 
giving  or  receiving  the  notice,  subject  to  all  legal  excep 
tions.  But  if  the  parties  attend  at  the  examination,  no  ob 
jection  to  the  form  of  an  interrogatory  shall  be  made  at  the 
trial,  unless  the  same  was  stated  at  the  time  of  the  exam 
ination.  If  the  deposition  be  taken  by  the  reason  of  the 
absence  or  intended  absence  from  the  county  of  the  witness 
or  because  he  is  too  infirm  to  attend,  proof  by  affidavit  or 
oral  testimony  shall  be  made  at  the  trial  that  the  witness 
continues  absent  or  infirm-,  to  the  best  of  the  deponent's 
knowledge  or  belief.  The  deposition  thus  taken  may  also 
be  read  in  case  of  the  death  of  the  witness.  Pr.  Act,  430. 

SEC.  8.  •  If  a  commission  to  take  the  deposition  of  a  wit 
ness  out  of  this  state  is  issued,  on  the  application  of  one 
party  without  the  consent  of  the  other,  to  a  person  who  is 
not  a  judge  or  justice  of  the  peace  or  a  commissioner  ap 
pointed  by  the  governor  of  this  state,  and  the  party  who 
does  not'  consent,  after  the  appointment,  files  cross  inter 
rogatories,  and  stipulates  as  to  the  manner  in  which  the 
deposition  shall  be  returned,  he  is  estopped  from  saying 
that  the  commissioner  was  improperly  appointed.  Croivther 
vs.  Rowlanson,  27  Cal.  376. 

SEC.  9.  It  is  no  ground  for  the  exclusion  of  a  deposition 
that  it  was  noticed  to  be  taken  before  the  county  judge,  but 
was  taken  before  the  county  clerk.  Williams  vs.  Chadbourne, 
6  Cal.  559.- 

Notice  to  take  Depositions. 

SEC.  10.  A  slight  error  in  the  title  of  a  cause,  where 
there  is  no  other  suit  pending  between  the  parties,  will  not 
invalidate  the  notice.  Mitts  vs.  Dunlap,  3  Cal.  94. 

SEC.  11.  The  decision  of  such  motion  rests  in  the  sound 
discretion  of  the  court,  who  must  decide  upon  the  suffi 
ciency  or  otherwise  of  the  ground  upon  which  such  motion 
is  made.  3  Cal.  94. 

SEC.  12.  What  to  Contain. — It  being  objected  to  by 
plaintiff  to  a  deposition :  1st.  That  the  copy  of  the  order  of 
the  judge,  fixing  the  time  for  taking  it,  did  not  mention  the 


398  JUSTICES'  TREATISE. 

notice  to  be  given  the  adverse  party.  2d.  That  no  correct 
copy  of  said  order  was  served.  3d.  That  no  sufficient 
notice  to  take  the  deposition  was  ever  given.  The  objection 
was  overruled,  because  the  original  of  the  judge,  made  on 
affidavit,  fixed  the  time  of  notice  at  three  days,  and  because 
plaintiff's  counsel  acknowledged  service,  in  writing,  of  a 
copy  thereof,  March  8th,  1859,  more  than  three  days  before 
the  taking  of  the  deposition :  Held,  that  there  was  no  error, 
that  the  objection  assigned  was  matter  for  the  court,  and 
its  discretion  was  properly  exercised.  That  reasonable 
notice  should  be  given  of  the  time  and  place  of  taking 
testimony;  but  what  is  reasonable  notice  depends  on  the 
particular  circumstances.  Attwood  vs.  fricot,  17  Cal.  37. 

SEC.  13.  Notice  of  time  and  place  having  been  given,  it 
is  a  matter  of  small  importance  who  took  the  deposition, 
particularly  in  view  of  the  inconvenience  and  delay  which 
would  result  from  a  different  rule.  Williams  vs.  Chadbourne, 
6  Cal.  559. 

SEC.  14.  Proof  of  notice  to  take  a  deposition,  where  the 
written  notice  was  defective,  was  held  good  when  made  by 
parol,  and  conforms  substantially  to  the  statute.  Mills  vs. 
Dunlap,  3  Cal.  94. 

SEC.  15.  Order  of  Court  to  take. — An  order  to  take  testi 
mony  by  deposition  should  specify  the  notice  to  be  given  to 
the  adverse  party.  A  deposition  taken  upon  an  order  with 
out  such  specification,  where  the  opposite  party  has  not 
had  reasonable  notice,  ought  not  to  be  read  in  evidence. 
Ellis  vs.  Jaszyiisky,  5  Cal.  444. 

SEC.  16.  Exceptions  to  Deposition. — Where  a  rule  of  the 
district  court  requires  three  days'  written  notice  of  excep 
tions  to  depositions,  if  they  are  returned  and  filed  with  the 
clerk  that  length  of  time  before  trial,  and  such  notice  is  not 
given  on  a  first  trial,  the  depositions  may  be  admitted  on  a 
second  trial,  though  it  took  place  the  day  after  the  first 
trial.  The  party  was  in  default  in  not  giving  the  notice 
before  the  first  trial.  Myers  vs.  Casey,  14  Cal.  542. 

SEC.  17.  Where  such  rule  of  a  district  court  requires 
the  notice  as  above,  unless  the  exceptions  appear  on  the 
face  of  the  depositions,  the  meaning  is,  that  the  objection — 
not  the  objectional  matter — must  appear  on  the  face  of  the 
deposition.  14  Cal.  542. 


DEPOSITIONS.  399 

SEC.  18.  An  appearance  at  the  time  and  place,  and 
cross-examining  the  witness,  waives  whatever  objection 
may  be  had  because  the  notice  is  too  short.  Jones  vs.  Love, 

9  Cal.  68. 

Certificate  to. 

SEC.  19.  WJiat  it  must  State. — A  certificate  to  a  deposi 
tion  must  state  that  the  deposition  was  read  to  the  witness 
before  signing ;  it  must  set  forth  an  actual  compliance  with 
all  the  requirements  of  the  statute.  Williams  vs.  Chadbourne, 
6  Cal.  559. 

SEC.  20.  It  is  not  essential  to  the  certificate  of  a  notary 
to  a  deposition  taken  before  him,  that  it  state  that  the 
deposition  was  row.!  over  to  the  witness  before  signing;  but 
if  the  certificate  state  that  the  deposition  was  correct  by 
the  notary,  under  the  direction  of  the  witness,  it  is  suffi 
cient  compliance  with  the  statute,  because  showing,  by 
necessary  implication,  that  the  deposition  was  either  read 
to  or  examined  by  the  witness.  Higgins  vs.  Wbrtell,  18  Cal. 
330. 

SEC.  21.  Date  of  Certificate. — If,  at  the  end  of  a  deposi 
tion  taken  by  a  commissioner  out  of  the  state,  there  is  a 
jnrat  giving  the  date  when  the  deposition  was  subscribed 
and  sworn  to,  it  is  not  necessary  that  the  further  certificate 
of  a  compliance  with  the  four  hundred  and  thirtieth  section 
of  the  practice  act  should  be  dated.  Elgin  vs.  Hill,  27  Cal. 
372. 

SEC.  22.  Waived  by  Stipulation. — If  the  parties  stipulate 
that  a  commissioner  may  take  a  deposition  upon  written 
interrogatories,  and  the  stipulation  says  nothing  about  the 
day,  the  same  may  be  taken  by  the  commissioner;  it  is  not 
necessary  that  the  commissioner  state  in  his  certificate  the 
day  the  same  was  taken.  27  Cal.  372. 

Objections  to. 

SEC.  23.  When  Made. — There  is  nothing  in  the  statute 
that  requires  that  exceptions  to  depositions  shall  be  filed 
before  the  time  of  trial.  The  objection  can  be  made  at  any 
time  before  the  depositions  are  read  in  evidence.  Dye  vs. 
Bailey,  2  Cal.  383. 

SEC.  24.     A  motion  to  suppress  the  reading  of  a  deposi- 


400  JUSTICES'  TREATISE. 

tion  before  the  case  in  which  it  was  taken  is  put  upon  trial, 
is  premature.  ^ he  proper  time  to  object  to  such  deposi 
tion  is  when  it  is  offered  in  evidence  on  the  trial.  Mills  vs.- 
Dunlap,  3  Cal.  94. 

SEC.  25.  When  Waived. — When  the  deposition  of  a  wit 
ness  is  taken,  objections  to  his  competency  must  be  taken 
at  the  time  and  not  reserved  till  the  trial,  or  they  will  be 
deemed  waived.  Jones  vs.  Love,  9  Cal.  68. 

SEC.  26.  In  this  case  the  deposition  of  Fairbanks  was 
offered  in  evidence  by  plaintiff,  and  obtained  this  on  the 
fourth  interrogatory :  "Have  you  any  conveyance  for  said 
premises  from  any  one?  If  yes,  from  -whom  and  where  is 
said  title-deed?"  The  answer  to  which  iras  :  "Hatch  made 
a  deed  to  me  of  said  premises  in  the  early  part  of  1854,  and 
I  have  the  deed  now  in  my  possession  " :  Held,  that  the 
rejection  of  this  answer  when  offered  in  evidence  by  plaintiff 
could  not  have  been  such  a  surprise  upon  him  as  on  that 
ground  to  set  aside  the  verdict  against  him ;  that  the  only 
benefit  the  testimony  could  have  been  to  plaintiff  was  the 
proof  of  the  contents  of  the  deed,  and  that  counsel  could 
not  have  expected  to  read  one  part  of  this  answer  to  prove 
the  contents  of  the  lost  deed  when  the  other  part  proved 
the  deed  to  be  then  in  the  possession  of  the  witness :  Held, 
further,  that  the  rejection  of  this  answer  on  defendant's 
objection  was  not  waived  because  not  raised  when  the  dep 
osition  was  taken.  Lawrence  vs.  Fulton,  19  Cal.  683. 

SEC.  27.  Depositions  are  subject  to  all  legal  exceptions 
at  the  trial,  save  only  the  objection  to  the  form  of  an  inter 
rogatory  where  the  parties  attend  the  examination.  19  Cal. 
683. 

SEC.  28.  Where  the  parties  stipulated  that  a  deposition 
which  had  been  taken  in  another  action  should  be  used  on 
the  trial,  "with  the  same  force  and  effect,  and  subject  to 
the  same  exceptions,  as  if  taken  in  this  case":  Held,  that 
the  stipulation  was  a  waiver  of  any  objection  to  the  compe 
tency  of  the  witness.  Brooks  vs.  Crosby,  22  Cal.  42. 

SEC.  29.  A  party  who  appears  at  the  taking  of  a  depo 
sition  and  examines  the  witness  without  objecting  to  his- 
competency,  cannot  afterwards  interpose  that  objection. 
22  Cal.  42. 


DEPOSITIONS.  401 

Admissibility  of. 

SEC.  30.  A  deposition  of  one  of  the  defendants,  intro 
duced  by  plaintiff  on  trial,  may  be  introduced  by  the  de 
fendants  on  a  new  trial.  Turner  vs.  Mclllianey,  8  Cal.  575. 

SEC.  31.  If  part  of  the  deposition  be  liable  to  the  excep 
tion  of  hearsay,  this  only  goes  to  the  rejection  of  that  part, 
and  the  objection  should  be  taken  at  the  hearing.  Myers 
vs.  Casey,  U  Cal.  542. 

SEC.  32.  The  deposition  of  a  surveyor,  who  ran  the 
boundary  lines  of  a  grant,  taken  in  one  action,  is  admissi 
ble  in  another  action  between  different  parties  as  hearsay 
evidence,  upon  the  location  of  such  lines,  after  his  death. 
Hence,  the  deposition  of  Yioget,  as  to  the  position  of  the 
southern  boundary  of  the  Sutter  grant,  offered  in  connection 
with  the  map  drawn  by  him,  is  admissible  as  hearsay  evi 
dence,  though  taken  in  another  action  between  different 
parties.  Morton  vs.  Folger,  15  Cal.  275. 

SEC.  33.  A  whole  deposition  cannot  be  excluded  on  the 
ground  that  certain  questions  asked  on  the  examination 
were  improper.  The  objection  to  the  deposition  on  this 
ground  must  be  confined  to  the  particular  questions,  other 
wise  any  error  in  permitting  the  questions  will  be  waived. 
Higgiw  vs.  Wortell,  18  Cal.  330. 

"When  may  be  Used. 

SEC.  34.  When  a  deposition  has  been  once  taken,  it  may 
be  read  in  any  stage  of  the  same  action  or  proceeding  by 
either  party,  and  shall  then  be  deemed  the  evidence  of  the 
party  reading  it.  The  testimony  of  a  witness  out  of  the 
state  may  be  taken  by  deposition  in  an  action,  at  any  time 
after  the  service  of  the  summons  or  the  appearance  of  the 
defendant ;  and  in  a  special  proceeding,  at  any  time  after  a 
question  of  fact  has  arisen  therein.  Pr.  Act,  431,  432;  Gen. 
Laws,  5366,  5467.  The  party  obtaining  a  postponement  of 
a  trial  in  any  court  of  record,  shall  also,  if  required  by  the 
adverse  party,  consent  that  the  testimony  of  any  witness  of 
such  adverse  party,  who  is  in  attendance,  be  then  taken 'by 
deposition  before  a  judge  or  clerk  of  the  court  in  which  the 
case  is  pending,  or  before  such  notary  public  as  the  court 
51 


402  JUSTICES'  TREATISE. 

may  indicate,  which  shall  accordingly  be  done,  and  the  tes 
timony  so  taken  may  be  read  on  the  trial  with  the  same 
effect  and  subject  to  the  same  objections,  as  if  the  witnesses 
were  produced.  Pr.  Act,  664 ;  Pub.  Laics,  1854. 

SEC.  35.  The  reading  of  evidence  taken  by  deposition, 
although  done  after  the  jury  have  retired,  is  as  much  a  part 
of  the  trial  as  any  other.  The  People  vs.  Koliler,  5  Cal.  72. 

SEC.  36.  The  object  of  this  section  is  to  enable  either 
party  to  read  a  deposition  admissible  in  itself,  once  taken, 
in  any  stage  of  the  action  or  proceeding — not  to  render  it 
admissible  simply  because  it  was  taken.  Turner  vs.  Mcll- 
haney,  8  Cal.  575. 


CHAPTER     XLIII. 


DISMISSAL  AND  DISCONTINUANCE. 

SECS.  SECS. 


WHAT  is  A  DISMISSAL 1 

WHEN  ACTION  MAY  BE  DISMISSED  2-  5 
WHAT  OPERATES  A  DISCONTINU 
ANCE 6-7 


WHEN  SUIT  MAY  BE  DISCONTIN 
UED  8-9 

IMPBOPEB  DISCONTINUANCE  AS 

TO  ONE  DEFENDANT...  10 


"What  is  a  Dismissal. 

SECTION  1.  A  dismissal  of  an  action  is  a  final  decision  of 
the  action,  and  it  is  a  final  decision  of  the  action  as  against  all 
claim  made  by  it,  although  it  may  not  be  a  final  determina 
tion  of  the  rights  of  the  parties  as  they  may  be  presented  in 
some  other  action.  In  the  case  of  Dowling  vs.  Polack  (18 
Cal.  625),  the  court  say:  "In  effect,  a  dismissal  is  a  final 
judgment  in  favor  of  the  defendant;  and,  although  it  may 
not  preclude  the  plaintiff  from  bringing  a  new  suit,  there  is 
no  doubt  that  for  all  purposes  connected  with  the  proceed 
ings  in  the  particular  action  the  rights  of  the  parties  are 
affected  by  it  in  the  same  manner  as  if  there  had  been  an 
adjudication  upon  the  merits."  21  Cal.  164. 

"When  an  Action  may  be  Dismissed. 
SEC.  2.     Judgment  that  the  action  be  dismissed  without 


DISMISSAL  AND  DISCONTINUANCE.  403 

prejudice  to  a  new  action,  may  be  entered  with  costs  in  the 
following  cases : 

1st.  When  the  plaintiff  voluntarily  dismisses  the  action 
before  it  is  finally  submitted. 

2d.  "When  he  fails  to  appear  at  the  time  specified  in  the 
summons  or  upon  adjournment  or  within  one  hour  there 
after. 

3d.  When  it  is  objected  at  the  trial  and  appears  by  the 
evidence,  that  the  action  is  brought  in  the  wrong  county  or 
township  or  city;  but  if  the  objection  be  taken  and  over 
ruled,  it  shall  be  cause  only  of  reversal  on  appeal,  and  shall 
not  otherwise  invalidate  the  judgment;  if  not  taken  at  the 
trial,  it  shall  be  deemed  waived,  and  shall  not  be  cause  of 
reversal.  Gen.  Laivs,  5522. 

SEC.  3.  After  an  action  has  been  tried  and  submitted, 
the  plaintiff  has  no  right  to  dismiss  "it,  nor  has  the  court 
then  any  authority  to  enter  an  order  of  dismissal  without 
the  consent  of  the  defendant.  22  Gal.  100. 

SEC.  4.  Though  a  motion  to  dismiss  the  complaint  in 
an  action  before  a  justice  be  made  on  the  return  day,  yet  it 
is  error  to  allow  it  on  the  adjourned  day  when  the  parties 
are  ready  for  trial  on  the  issues  joined.  17  Barb.  (N.  Y.) 
141. 

SEC.  5.  He  cannot  dismiss  a  suit  of  which  he  has  juris 
diction,  after  a  trial  upon  the  merits,  but  must  give  judg 
ment  for  one  or  the  other  of  the  parties.  1  Green,  165. 

"What  Operates  a  Discontinuance. 

SEC.  6.  A  discontinuance  cannot  be  made  by  an  order 
of  the  court  of  an  action  over  which  it  has  no  control;  it  is 
the  result  of  some  act  done  or  omitted  by  the  plaintiff  which 
withdraws  his  suit  from  the  power  and  jurisdiction  of  the 
court.  6  Humph.  419. 

SEC.  7.  If  the  justice  is  not  present  at  the  time  when  the 
writ  is  made  returnable,  and  the  case  is  not  continued  as 
provided  by  statute  in  such  cases,  it  operates  a  discontinu 
ance.  6  Shep.  23.  So  also  his  absence  from  a  place  to 
which  a  cause  has  been  adjourned  by  him,  for  the  whole 
half  day  within  which  the  cause  was  set  down  for  trial,  is  a 
discontinuance  of  the  action.  9  Vt.  118.  So  also  his  ab- 


404  JUSTICES'  TREATISE. 

sence  at  the  time  and  place  tq  which  he  has  continued  a 
case,  operates  a  discontinuance.  5  Shep.  413.  So  also  the 
expiration  of  his  commission  is  a  discontinuance  of  a  cause 
pending  before  him.  2  Penn.  906. 

When  Suit  may  be  Discontinued. 

SEC.  8.  A  plaintiff  may  discontinue  his  suit  at  any  time, 
as  well  after  an  appeal  from  the  judgment  as  before.  9 
Mo.  251. 

SEC.  9.  A  justice,  after  deciding  to  continue  a  case  on 
defendant's  motion,  may,  on  plaintiff 's  motion,  at  the  same 
sitting  enter  a  discontinuance  on  the  record.  3  Wms.  (28 
Vt.)  557. 

Improper  Discontinuance  as  to  one  Defendant. 

SEC.  10.  When  a  suit  is  improperly  discontinued  as  to 
one  of  the  defendants,  this. will  not  avail  another,  who  after 
wards  appears  and  defends  the  suit.  10  Ala.  213. 


CHAPTER      XLIV. 
JUSTICE'S    DOCKET. 

SECTION  1.  Every  justice  shall  keep  a  book,  denominated 
a  docket,  in  which  he  shall  enter  : 

1st.  The  title  of  every  action  or  proceeding. 

2d.  The  object  of  the  action  or  proceeding,  and  if  a  sum 
of  money  be  claimed,  the  amount  of  the  demand. 

3d.  The  date  of  the  summons  and  the  time  of  its  return, 
and  if  an  order  to  arrest  the  defendant  be  made  or  a  writ 
of  attachment  be  issued,  a  statement  of  these  facts. 

4th.  The  time  when  the  parties,  or  either  of  them,  ap 
pear,  or  their  non-appearance  if  default  be  made  ;  a  minute 
of  the  pleadings  and  motions,  if  in  writing,  referring  to 
them — if  hot  in  writing  a  concise  statement  of  the  material 
parts  of  the  pleading  and  of  all  motions  made  during  the 
trial  by  either  party,  and  his  decisions  thereon. 

5th.  Every  adjournment,  stating  on  whose  application, 
whether  on  oath,  evidence  or  consent,  and  to  what  time. 


JUSTICE'S  DOCKET.  405 

6th.  The  demand  for  a  trial  by  jury,  -when  the  same  is 
made  and  by  whom  made,  the  order  for  the  jury  and  the 
time  appointed  for  the,  trial  and  return  of  the  jury. 

7th.  The  names  of  the  jury,  who  appear  and  are  sworn, 
the  names  of  all  witnesses  sworn  and  at  whose  request. 

8th.  The  verdict  of  the  jury  and  when  received ;  if  the 
jury  disagree  and  are  discharged,  the  fact  of  such  disagree 
ment  and  discharge. 

9th.  The  judgment  of  the  court,  specifying  the  costs  in 
cluded,  and  the  time  when  rendered. 

10th.  The  issuing  of  the  execution,  when  issued,  and  to 
whom,  the  renewals  thereof,  if  any,  and  when  made,  and  a 
statement  of  any  money  paid  t'o  the  justice,  and  when  and 
by  whom. 

llth.  The  receipt  of  a  notice  of  appeal,  if  any  be  given, 
and  of  the  appeal  bond,  if  any  be  filed.  Pr.  Act,  604, 
Sec.  157. 

The  several  particulars  above  specified  shall  be  entered 
under  the  title  of  the  action  to  which  they  relate,  and  at  the 
time  when  they  occur.  Such  entries  in  a  justice's  docket, 
or  a  transcript  thereof,  certified  by  the  justice  or  his  suc 
cessor  in  ofiice,  shall  be  primary  evidence  to  prove  the  facts 
so  stated  therein.  Pr.  Act,  605,  Sec.  158.  A  justice  shall 
keep  an  alphabetical  index  to  his  docket,  in  which  shall  be 
entered  the  names  of  the  parties  to  each  judgment,  with  a 
reference  to  the  page  of  entry.  The  names  of  the  plaintiffs 
shall  be  entered  in  the  index,  in  the  alphabetical  order  of 
the  first  letter  of  the  family  names.  Pr.  Act,  606,  Sec.  159. 

SEC.  2.  T£he  following  form  will  convey  some  idea  of  the 
manner  in  which  a  justice's  docket  should  be  kept : 


(('in!  nut 


[Date.]     Summons  issued  returnable days  after  the  service  thereof. 

Summons  returned  personally  served  by ,  on  the  .... 

inst.  Fees 

Parties  appear.  Plff.  by  ....  and  deft,  by Plff.  declares 

against  the  deft,  for  goods,  wares  and  merchandise,  sold  by  plff.  to  deft,  at 
his  request,  at  the  city  of  . . . .,  in  . . . . ;  claims  ....  dollars  damages.  Deft, 
answers,  denying  complaint,  and  gives  notice  of  set-off  for  goods,  etc.,  sold  to 
plff.,  money  lent,  paid  out,  had  and  received;  claims  a  balance  of  ....  dol 
lars.  On  motion  and  oath  of  deft,  cause  adjourned  to  ....  iust.,  at  .... 


406  JUSTICES'  TREATISE. 

o'clock,  at Issued  venire  at  plff 's  request,  returnable  at  the  time  and 

place  last  mentioned. 

Parties  appear  and  proceed  to  trial  of  the  cause.     The  following 

jurors  returned  summoned  upon  the  venire,  by ,  constable  [insert 

the  names  of  the  jurors]  of  whom  all  appeared  except    The  following 

were  drawn  and  sworn  as  jurors  to  try  the  cause   [insert  names  of  jurors] 

and were  sworn  as  witnesses  for  the  plff., as  a 

witness  for  deft.  After  hearing  the  testimony,  argument  of  counsel  and  the 
instructions  of  the  court,  the  jury  retired  under  the  charge  of ,  con 
stable,  duly  sworn  for  that  purpose,  and  found  a  verdict  in  favor  of  the 
plff.  for dollars,  which  was  received  on  the  day  last  mentioned  ;  where 
upon  I  immediately  rendered  judgment  for  the  plff.  and  against  the  deft,  for: 

Amount  found $ . . 

Costs  . . 


[Date.]    Execution  issued  to 

Execution  returned  satisfied. 

An  entry  of  judgment  by  confession  may  be  as  follows  : 
against 


[Date.]  Parties  appear  and  judgment  entered  against  the  defendant  on  a 
demand  arising  upon  contract,  on  his  confession  in  writing,  accompanied  by 
his  affidavit,  for  : 

Sum  confessed $ . . 

Costs  . . 


SEC.  3.  Where  tlie  directing  mandates  of  the  statute 
were  nearly  complied  with,  in  relation  to  the  docket  books 
of  the  justice,  but  a  caption  to  the  column  was  wanting,  it 
was  held,  that  on  the  ground  of  public  policy  the  proceed 
ings  should  be  sustained,  and  that  the  judgment  was  not 
void  for  uncertainty  when  attacked  by  third  persons.  3 
Humph.  151. 

SEC.  4.  A  justice  can  amend  his  docket  according  to  the 
facts  after  the  rendition  of  his  judgment.  1  Breese,  195, 

SEC.  5.  After  a  justice  has  made  up  his  record  and 
delivered  a  copy  to  a  party,  upon  which  a  certiorari  is 
brought,  he  cannot  alter  the  record  and  send  up  a  different 
transcript.  2  South,  683. 

SEC.  6.  A  copy  of  a  record  of  a  justice  need  not  bear  a 
seal.  4  Gray  (Mass.)  29. 

SEC.  7.     And  is  sufficiently  attested  where  the  justice  of 


JUSTICE'S  DOCKET.  407 

the  peace  is  described  as  such  in  the  record,  if  attested  by 
him  as  "justice,"  without  adding  "of  the  peace."  4  Gray 
(Mass.)  29. 

SEC.  8.  In  a  suit  against  a  justice  for  nonfeasance, 
records  made  by  him  are  admissible  in  evidence ;  and  the 
records,  when  produced,  are  conclusive  as  to  all  the  facts 
therein  stated,  and  cannot  be  impeached  collaterally.  12 
Vt.  657. 

SEC.  9.  The  validity  of  such  record  is  a  question  to  be 
decided  by  the  court.  12  Vt.  657. 

SEC.  10.  A  justice's  record  cannot  be  contradicted  by 
parol,  nor  in  any  way  be  collaterally  impeached.  12  Vt. 
538. 

SEC.  11.  Under  the  proper  entitling  of  a  cause  writh  the 
names  of  the  parties,  a  justice  entered  on  his  docket  an 
award  of  judgment  in  the  following  form :  "It  is  therefore 
considered  that  the  said  P.  do  recover  of  the  said  D.  the 
sum,"  etc.  In  debt  on  this  judgment,  it  was  held,  that 
the  docket  entry  did  not  show  with  sufficient  certainty  in 
whose  favor  and  against  whom  the  judgment  was  rendered, 
and  that  therefore, a  transcript  thereof  offered  in  evidence 
was  inadmissible.  1  Doug.  502. 

SEC.  12.  Held,  also,  that  parol  evidence  was  inadmissi 
ble  to  prove  that  the  letters  "p."  and  "d."  meant  "plaint 
iff"  and  "  defendant."  1  Doug.  502. 

SEC.  13.  A  justice's  docket  of  a  judgment  rendered  by 
him,  though  it  may  in  some  cases  be  explained,  cannot  as 
a  whole  be  contradicted  by  parol  proof ;  and  it  has  a  verity 
superior  to  a  rule  entered  in  the  minutes  of  the  court  of 
common  pleas,  but  not  recorded,  reversing  such  judgment. 
3  Barb.  Sup.  Ct.  594. 

SEC.  14.  The  jurisdiction  of  a  justice  must  appear  from 
the  record  of  the  "proceedings,  and  will  not  be  presumed. 
5  Pike,  27. 

SEC.  15.  Where  justices  exercise  jurisdiction  out  of  their 
own  township,  under  a  statute  provision  allowing  them  to 
do  so  in  certain  cases,  their  records  need  not  show  that  the 
facts  existed  to  authorize  them  to  exercise  the  jurisdiction, 
but  this  may  be  shown  aliunde.  6  Mo.  57. 

SEC.  16.     Where  a  justice  renders  judgment  immediately 


408  JUSTICES'  TREATISE. 

after  verdict  and  notes  it  in  his  minutes  of  trial,  it  is  no 
cause  for  reversal  on  certiorari  that  he  did  not  enter  the 
judgment  upon  his  docket  for  two  or  three  days  afterwards. 
6  Hill,  38. 

SEC.  17.  Where  a  justice  made  an  entry  of  a  civil  action 
upon  his  memorandum  book,  and  of  the  proceedings  there 
in,  as  follows:  "1842,  December  3,  Daniel  Darling  vs. 
Hwace  Park.  Entered  'and  defaulted,  and  judgment  for 
plaintiff  for  damages,  9.69,  cost  3.11-12.80,"  and  issued 
execution  accordingly;  but  neither  the  writ  nor  the  evidence 
of  the  plaintiff's  demand  was  then  filed  in  the  case  or  in 
the  possession  of  the  justice;  it  was  held,  that  if  these 
papers  were  before  the  justice  when  the  execution  was 
issued  the  proceedings  were  not  irregular,  and  that  upon 
being  subsequently  produced  before  him  and  verified,  he 
would  thereupon  be  authorized  to  make  a  record  of  the 
judgment  at  large.  4  Gush.  197. 

SEC.  18.  A  suit  was  set  down  for  trial  for  the  fourth  day 
of  September,  1849,  and  continued,  but  to  no  day  certain, 
on  the  application  of  the  defendant.  On  December  twenty- 
second  following,  the  justice  made  a  memorandum  on  the 
warrant:  "Judgment  thirty-seven  dollars"  and  issued  an  ex 
ecution;  on  the  twenty-fourth,  he  entered  a  formal  judgment, 
and  dated  it  September  4th,  1849.  The  defendant  was  not 
notified  to  appear,  and  did  not  appear  after  the  fourth  of 
September:  Held,  that  the  memorandum — "judgment,  thir 
ty-seven  dollars" — was  a  nullity,  because  of  its  uncertainty; 
and  that  the  formal  judgment  was  void  for  want  of  notice  to 
the  defendant.  11  Hamp.  220. 

SEC.  19.  In  a  suit  on  a  justice's  judgment,  the  docket 
must  show  the  issuing  of  summons,  and  a  return  of  personal 
service  in  the  cause  in  which  judgment  was  rendered.  19 
Wend.  477. 

SEC.  20.  The  docket  entry  of  the  return  of  summons  was 
"returned  on  oath":  Held,  that  the  judgment  entered  was 
not  void,  but  remained  in  full  force  until  reversed.  18 
Perm.  State  (16  Harris)  120. 

SEC.  21.  The  time  when  the  action  was  commenced  and 
judgment  recorded  should  be  entered  on  the  docket.  1 
Perm.  379. 


JUSTICE'S  DOCKET.  409 

SEC.  22.  If  a  justice  appoint  a  special  constable,  but  has 
omitted  to  make  an  entry  thereof  in  his  docket,  he  may 
make  the  entry  at  any  time,  without  a  rule  of  the  court 
above  to  that  effect.  7  Ind.  525. 

SEC.  23.  A  justice  must  enter  the  names  of  all  witnesses 
and  jurors  on  his  docket.  1  Penn.  207,  321. 

SEC.  24.  A  justice  need  not  record  any  evidence  in  a  case 
before  him  except  such  as  is  objected  to — that  must  appear 
of  record,  whether  admitted  or  not.  2  Stew.  474;  1  Stew. 
26;  2  Port.  86. 

SEC.  25.  It  must  appear  on  the  record  of  the  justice  that 
the  jury  were  sworn.  2  Penn.  742. 

SEC.  26.  It  is  no  ground  for  reversing  the  judgment  of  a 
justice  of  the  peace  that  his  report  does  not  state  whether 
the  plaintiff  was  present  or  called  when  the  verdict  was  ren 
dered  by  the  jury.  3  Hill,  75. 

SEC.  27.  Section  six  hundred  and  seven  of  an  act  to 
amend  an  act  entitled  an  act  to  regulate  proceedings  in  civil 
cases  in  the  courts  of  justice  of  this  state,  passed  April  twen 
ty-ninth,  eighteen  hundred  and  fifty-one,  is  hereby  amended 
so  as  to  read  as  follows :  It  shall  be  the  duty  of  every  jus 
tice  of  the  peace,  upon  the  expiration  of  his  term  of  office, 
to  deposit  with  his  successor  his  official  dockets  and  all 
papers  filed  in  his  office,  as  well  his  own  as  those  of  his 
predecessors  or  any  other  which  may  be  in  his  custody,  to 
be  kept  as  public  records.  If  the  office  of  a  justice  become 
vacant,  by  his  death  or  removal  from  the  township  or  city 
or  otherwise,  before  his  successor  is  elected  and  qualified, 
the  docket  and  papers  in  possession  of  such  justice  shall  be 
deposited  in  the  office  of  some  other  justice  in  the  township, 
to  be  by  him  delivered  to  the  successor  of  said  justice;  and 
while  in  his  possession  he  may  issue  execution  on  a  judg 
ment  there  entered  and  unsatisfied  (may  make  all  orders  in 
proceedings  supplemental  to  execution,  and  may  file  notices 
and  undertakings  on  appeal,  and  may  take  the  justification 
of  the  sureties,  and  on  the  filing  of  the  undertaking  on  ap 
peal  order  stay  of  execution),  in  the  same  manner  and  with 
the  same  effect  as  the  justice  by  whom  the  judgment  was 
entered  might  have  done.  If  there  be  no  other  justice  in 
the  township,  then  the  docket  and  papers  of  such  justice 
52 


410  JUSTICES'  TREATISE. 

shall  be  deposited  in  the  office  of  the  county  clerk  of  the 
county,  to  be  by  him  delivered  to  the  successor  in  office  of 
the  justice.  Stats.  1870. 

SEC.  28.  Any  justice  with  whom  the  docket  of  his  prede 
cessor  is  deposited  shall  have  and  exercise  over  all  actions 
and  proceedings  entered  in  the  docket  of  his  predecessor, 
the  same  jurisdiction  as  if  originally  commenced  before 
him.  In  case  of  the  creation  of  a  new  county  or  the  change 
of  the  boundary  between  two  counties,  any  justice  into 
whose  hands  the  docket  of  a  justice  formerly  acting  as  such 
within  the  same  territory  may  come,  shall,  for  the  purposes 
of  this  section,  be  considered  the  successor  of  said  former 
justice.  Pr.  Act,  608. 

SEC.  29.  The  justice  elected  to  fill  a  vacancy  shall  be 
deemed  the  successor  of  the  justice  whose  office  became 
vacant  before  the  expiration* of  a  full  term.  When  a  full 
term  expires,  the  same  or  another  person  elected  to  take 
office  in  the  same  township  or  city  from  that  time  shall  be 
deemed  the  successor.  Pr.  Act,  609. 

SEC.  30.  When  two  or  more  justices  are  equally  entitled 
under  the  last  section  to  be  deemed  the  successors  in  office 
-of  the  justice,  the  county  judge  shall,  by  a  certificate,  sub 
scribed  by  him  and  filed  in  the  office  of  the  county  clerk, 
designate  which  justice  shall  be  the  successor  of  a  justice 
going  out  of  office  or  whose  office  has  become  vacant.  Pr. 
Act,  610. 

SEC.  31.  A  justice  with  whom'  the  docket  of  a  former 
justice  is  legally  deposited,  may  give  certified  copies  from 
such  docket,  but  the  certificate  must  show  that  the  justice 
making  it  has  the  legal  custody  of  the  docket.  4  Blackf. 
417. 


CHAPTER   XLV. 
ESTOPPEL. 

General  Principles. 

SECTION  1.  An  estoppel  may  arise  either  from  matter  of 
record,  from  the  deed  of  the  party ;  or  from  matter  in  pais — 
that  is,  matter  of  fact.  Thus,  any  confession  or  admission 


ESTOPPEL.  411 

made  in  pleading  in  a  court  of  record,  whether  it  be  express 
or  implied  from  pleading  over  without  a  traverse,  will  for 
ever  preclude  the  party  from  afterwards  contesting  the  same 
fact  in  any  subsequent  suit  with  his  adversary.  This  is  an 
estoppel  by  matter  of  record.  As  an  instance  of  an  estop 
pel  by  deed  may  be  mentioned  the  case  of  a  bond  reciting 
a  certain  fact ;  the  party  executing  that  bond  will  be  pre-» 
eluded  from  afterwards  denying,  in  any  ^  action  brought 
upon  that  instrument,  the  fact  so  recited.  As  an  instance 
of  estoppel  in  pais,  may  be  mentioned  the  case  of  accepting 
rent  of  another ;  he  will  be  estopped  from  denying  that 
such  man  was  his  tenant.  This  doctrine  of  law  gives  rise 
to  a  kind  of  pleading  that  is  neither  by  way  of  traverse  or 
denial,  nor  confession  and  avoidance,  but  is  a  pleading  that 
waives  any  question  of  fact  and  relies  merely  on  the  estop 
pel,  and  after  stating  the  previous  act,  allegation  or  denial, 
of  the  opposite  party,  prays  judgment  if  he  shall  be  re 
ceived  or  admitted  to  aver  contrary  to  what  he  before  said 
or  did.  This  pleading  is  called  a  pleading  by  way  of  estop 
pel.  Every  estoppel  ought  to  be  reciprocal:  that  is,  should 
bind  both  parties ;  and  this  is  the  reason  that,  regularly,  a 
stranger  shall  neither  take  advantage  of  nor  be  bound  by 
an  estoppel. 

SEC.  2.  An  estoppel  is  when  a  man  is  concluded  by  his 
own  act  or  acceptance  to  say  the  truth.  And  when  A  con 
veys  land  to  B  by  a  valid  conveyance,  he  is  not  allowed  to 
reclaim  the  estate  because  he  is  estopped,  but  because  he 
has  no  existing  title  to  it.  Estoppels  being  odious  because 
they  will  not  permit  a  man  to  speak  the  truth,  the  law  will 
not  base  a  conclusion  upon  that  ground  when  it  can  find  a 
sufficient  ground  that  is  consistent  with  the  truth.  9  Col. 
350. 

SEC.  3.  The  sense  of  estoppel  is,  that  a  man,  for  the  sake 
of  good  faith  and  fair  dealing,  ought  to  be  estopped  from 
saying  that  to  be  false  which  by  his  means  has  become  ac 
credited  for  truth  and  by  his  representations  has  led  others 
to  act.  Although  it  is  generally  true  that  estoppels  bind 
only  parties  and  privies,  yet  even  parol  admissions  may 
be  conclusive  where  they  have  had  the  effect  of  inducing 
another  to  alter  his  condition.  3  Col.  306,  307. 


412  JUSTICES'  TREATISE. 

SEC.  4.  It  is  undoubtedly  true  that  a  party  will  in  many 
instances  be  concluded  by  his  declarations  and  conduct 
which  have  influenced  the  conduct  of  another  to  his  injury. 
The  party  in  such  cases  is  said  to  be  estopped  from  deny 
ing  the  truth  of  his  admissions.  But  to  the  application *of 
this  principle  with  respect  to  the  title  of  property,  it  must 
tappear :  1st.  That  the  party  making  the  admission  by 
his  declarations  or  conduct  was  apprised  of  the  true  state  of 
his  own  title.  2d.  That  he  made  the  admission  with  the 
express  intention  to  deceive  or  with  such  careless  and 
culpable  negligence  as  to  amount  to  constructive  fraud. 
3d.  That  the  other  party  was  not  only  destitute  of  all 
knowledge  of  the  true  state  of  the  title,  but  of  the  means  of 
acquiring  such  knowledge.  4th.  That  he  relied  directly 
upon  such  admission  and  will  be  injured  by  allowing  its 
truth  to  be  disproved.  14  Gal.  367,  368. 

SEC.  5.  Estoppels  are  of  two  kinds — solemn  and  un- 
solemn  admissions.  The  latter  are  those  which  have  been 
acted  upon,  or  have  been  made  to  influence  the  conduct  of 
others,  or  to  derive  some  advantage  to  the  party  and  which 
cannot  afterwards  be  denied  without  a  breach  of  good  faith. 
Admissions,  whether  of  law  or  of  fact,  which  have  been  act 
ed  upon  by  others,  are  conclusive  against  the  party  making 
them  in  all  cases  between  him  and  the  person  whose  con 
duct  he  has  thus  influenced.  It  is  of  no  importance  whether 
they  were  made  in  express  language  to  the  person  himself 
or  implied  from  the  open  and  general  conduct  of  the  party; 
for  in  the  latter  case,  the  implied  declaration  may  be  con 
sidered  as  addressed  to  every  one  in  particular  who  may 
have  occasion  to  act  upon  it.  If  the  implied  declaration 
may  be  so  considered,  there  is  no  reason  why  an  express 
declaration  to  a  third  party  may  not  be  considered  as 
equally  addressed  to  others  who  afterwords  act  upon  it.  If 
the  express  declaration  be  confided  to  the  third  party  as  a 
confidential  communication,  then  it  might  admit  of  some 
doubt.  But  where  the  .  express  declaration  to  the  third 
party  is  not  confidential  but  general,  and  this  is  afterwards 
acted  upon  by  others,  the  party  making  the  declarations 
should  be  estopped.  The  particular  intention  with  which 
the  declaration,  express  or  implied,  was  made,  is  not  mate- 


,  ESTOPPEL.  413 

rial,  except  perhaps,  when  the  communication  is  confiden 
tial.  It  is  the  fact  that  the  declaration  has  been  acted  upon 
by  others  that  constitutes  the  liability  to  them.  It  makes 
no  difference  in  the  operation  of  the  rule,  whether  the  thing 
admitted  be  true  or  false — it  being  the  fact  that  it  has  been 
acted  upon  that  renders  it  conclusive.  If  it  is  a  case  of 
innocent  mistake,  still  if  it  has  been  acted  upon  by  another* 
it  is  conclusive  in  his  favor.  Where  the  plaintiffs  were 
induced  to  bring  an  ejectment  suit  by  the  false  statement  of 
the  defendant,  the  latter  was  held  to  be  estopped  to  set  up 
an  otherwise  good  defense  to  the  action.  9  Cal.  205-207. 

SEC.  6.  It  is  a  general  presumption  that  a  debtor  is 
trusted  upon  the  faith  of  his  property,  and  his  possession 
of  property  is  prima  facie  proof  of  ownership.  Where, 
therefore,  one  permits  another  to  deal  with  his  property  as 
if  it  belonged  to  the  latter,  ancT  by  his  declarations  permits 
others  to  be  misled,  such  declarations  must  be  considered 
as  addressed  to  every  one  in  particular  who  may  give  credit 
upon  the  strength  of  them,  and  the  party  making  them 
must  be  concluded.  This  is  the  same  case  as  where  a  man 
holds  out  to  the  world  that  a  certain  woman  is  his  wife;  in 
a  suit  for  her  debts,  he  will  not  be  allowed  to  deny  the  mar 
riage.  So  if  a  party  permits  his  name  to  be  used  as  one  of 
a  copartnership,  he  is  liable  to  a  stranger  who  believed 
him  to  be  a  partner.  In  all  such  cases,  the  partner  is 
estopped,  on  grounds  of  public  policy  and  good  faith,  from 
repudiating  his  own  representations.  3  Cal.  307. 

SEC.  7.  When  a  party  pursues  a  certain  line  of  conduct, 
by  which  he  has  induced  others  to  act,  he  is  estopped  from 
afterwards  avoiding  the  consequences  of  his  conduct.  Be 
fore  a  party  can  urge  an  estoppel  against  another,  he  must 
be  misled  by  the  conduct  of  the  party,  in  a  case  where  he 
is  ignorant  of  facts  known  to  the  party  against  whom  the 
estoppel  is  alleged.  If  he  knows  the  facts  himself,  or  has 
the  means  of  knowing  them  within  his  own  control,  he  has 
no  right  to  throw  the  labor  of  communicating  them  upon 
others.  8  Cal.  115,  115. 

SEC.  8.  If  A  permits  B  to  act  in  his  own  name  and  to 
hold  himself  out  to  C  in  a  false  character,  and  has  enjoyed 
the  supposed  advantages  of  this  conduct,  A  is  estopped  to 
dany  the  character  assumed  by  B.  7  Cal.  285. 


414  JUSTICES'  TREATISE. 

SEC.  9.  The  supreme  court  held,  in  the  case  of  Kidd  vs. 
Laird,  that  a  general  verdict  does  not  operate  as  an  estop 
pel,  except  as  to  such  matters  as  were  necessarily  considered 
and  determined  by  the  jury.  Our  further  examination  of 
the  question  in  this  case  has  not  changed  our  opinion,  but 
furnishes  us  many  additional  reasons  in  favor  of  its  correct 
ness.  "In  order  to  constitute  an  estoppel,"  says  chief 
justice  Shaw,  in  Eastman  vs.  Cooper  (15  Pick.  276),  "the 
same  point  must  be  put  in  issue  upon  the  record  and 
directly  found  by  the  jury.  Wherever  a  point  of  fact  has 
been  so  put  in  issue  and  found  by  a  jury,  then  the  record 
is  regarded  as  conclusive  of  that  fact  whenever  it  is  again 
drawn  in  question  by  the  parties  or  their  privies."  In  Gil- 
l>ert  vs.  Thompson  (9  Cush.  348),  the  law  is  declarged  to  be 
well  settled  "that  a  judgment  in  a  former  action  is  conclu 
sive  only  when  the  same  cause  of  action  has  been  adjudi 
cated  between  the  same  parties,  or  the  same  point  has  been 
put  in  issue  upon  the  record,  and  directly  found  by  the 
verdict  of  the  jury."  It  was  held  in  Porter  vs.  Baker  (19  N. 
H.  166),  that  "a  fact  found  by  a  verdict  and  judgment,  to 
constitute  an  estoppel,  "must  be  res  judicata,  that  which  was 
necessarily  and  immediately  found  according  to  the  plead 
ings,  not  that  on  which  the  verdict  was  merely  based — a 
fact  in  issue  as  distinct  from  a  fact  in  controversy."  It  is 
too  well  settled  to  be  controverted  that  a  verdict  is  never 
conclusive  upon  immaterial  or  collateral  issues.  1  Story, 
474;  18  Wend.  107;  7  Pick.  146;  15  Gal.  148,  161. 

SEC.  10.  Admissions  which  have  been  acted  on  by 
others  are  conclusive  against  the  party  making  them  in  all 
cases  between  him  and  the  person  whose  conduct  he  has 
thus  influenced.  It  is  of  no  importance  whether  they  were 
made  in  express  language  to  the  person  himself  or  implied 
from  the  open  and  general  conduct  of  the  party.  Tor  in 
the  latter  case  the  implied  declaration  may  be  considered 
as  addressed  to  every  one  in  particular  who  may  have  occa 
sion  to  act  upon  it.  In  such  cases  the  party  is  estopped  on 
grounds  of  public  policy  and  good  faith  from  repudiating 
his  own  representations.  There  is  no  such  doctrine  in  the 
law  of  evidence  as  that  a  casual  or  other  declaration  or  act, 
made  or  done  by  a  party  which  another  may  happen  to 


ESTOPPEL.  415 

hear  of,  which  would  authorize  the  latter,  without  seeking 
further  information,  to  go  on  and  act  as  if  it  were  true  and 
hold  the  author  concluded  by  it.  If  this  were  so,  the  num 
ber  of  "parol  estoppels  might  be  so  enlarged  as  to  make 
almost  every  act  or  admission  an  estoppel.  It  would  be 
scarcely  safe  to  say  or  do  anything  in  reference  to  his  rights 
or  property  lest  he  might  be  held  to  some  estoppel  in  favor 
of  parties  who  had  no  relations  with  him  at  the  time  of 
these  acts  or  declarations.  11  CaL  349. 

SEC.  11.  Where  a  party  purchased  real  estate,  at  an  ex 
ecution  sale,  upon  the  faith  of  the  representations  of  the 
judgment  creditor  that  his  judgment  was  the  first  on  the 
property,  when,  in  fact,  there  were  prior  incumbrances  on 
it  of  more  than  its  value,  the  purchaser  should  be  relieved 
and  the  judgment  creditor  should  be  estopped  from  claim 
ing  an  advantage  resulting  from  his  own  misrepresenta 
tions.  It  makes  no  difference  whether  the  misrepresenta 
tions  were  made  willfully  or  ignorantly  or  that  the  action 
against  the  purchaser  was  brought  in  the  name  of  the  sher 
iff.  Although  the  maxim,  caveat  emptor,  applies  to  sheriff's 
sales,  it  has  never  been  carried  to  the  extent  that  such  a 
sale  could  not  be  impeached  on  the  ground  of  fraud  or  mis 
representation.  The  maxim  only  applies  thus  far,  that  the 
purchaser  is  supposed  to  know  what  he  is  buying  and  does 
so  at  his  risk ;  but  this  presumption  may  be  overcome  by 
actual  evidence  of  fraud,  or  it  may  be  shown  that,  in  fact, 
the  party  did  not  know  the  condition  of  the  thing  pur 
chased,  and  was  induced  to  buy  upon  the  faith  of  repre 
sentations  made  by  those  who,  by  their  peculiar  relations 
to  the  subject,  were  supposed  to  be  thoroughly  acquainted 
with  it.  8  CaL  21,  26. 

SEC.  12.  "Warehousemen  who  give  their  receipt  for  goods 
on  storage  are  estopped  from  setting  up  a  want  of  segrega 
tion  of  the  goods  receipted  for  from  other  goods,  in  an 
action  against  them,  by  the  holder  of  the  receipt,  for  a  con 
version  of  the  goods  by  a  seizure  in  an  action  against  a 
vendor  of  the  plaintiff ;  and  this,  although  the  warehouse 
men  are  the  attaching  creditors,  and  although  the  sheriff 
making  the  seizure  is  not  liable,  by  reason  of  there  being 
no  segregation.  6  CaL  541. 


416  JUSTICES'  TREATISE. 

SEC.  13.  A  mortgage  executed  by  the  defendant  oper 
ates  an  estoppel  to  a  defense  of  want  of  consideration. 
According  to  well-established  principles  of  public  policy, 
for  the  security  of  good  faith  and  fair  dealing,  a  party  is 
not  allowed  to  controvert  the  declarations  which  he  has 
made  by  deed  or  to  deny  the  enforcement  of  rights  which 
he  has  thus  attempted  to  confer.  3  Cal.  266. 

SEC.  14.  The  doctrine  of  estoppel  in  pals  is  applied  to 
prevent  a  wrong-doer  from  asserting  claims  against  his 
declarations  or  conduct,  not  to  preVent  an  innocent  party 
from  enforcing  his  rights.  It  is  the  wrong-doer  who  is 
estopped,  upon  the  principle  that  he  shall  not  take  advan 
tage  of  his  own  wrong.  A  man  may  tell  a  lie  and  induce 
action  by  inducing  the  belief  that  it  is  the  truth,  but  the 
liar  cannot  prevent  the  person  to  whom  the  lie  was  told 
from  showing  the  truth.  It  would,  indeed,  be  against 
common  honesty  and  common  sense  to  permit  a  party  to 
allege  that  he  had  done  wrong ;  that  he  had  made  false 
representations;  had  obtained  money  from  an  innocent 
party  thereby  and  had  used  it ;  and  being  in  consequence 
estopped  from  denying  the  truth  of  his  representations, 
the  innocent  party  is  also  precluded  from  questioning  their 
truth.  16  Cal.  627. 

SEC.  15.  Only  a  technical  estoppel  is  required  to  be 
specially  pleaded,  and  a  technical  estoppel  is  by  deed  to 
the  party  pleading  or  to  one  under  whom  he  claims  or  by 
matter  of  record.  3  Cal.  307.  Estoppels  inpais  cannot  be 
pleaded  but  are  given  in  evidence  to  the  court  and  jury,  and 
may  operate  as  effectually  as  a  technical  estoppel,  under  the 
direction  of  the  court.  3  Cal.  308. 


CHAPTER      XL  VI. 

ESTEAYS. 

SECTION  1.  The  general  estray  law  provides  that  every 
citizen  householder,  who  shall  find  an  estray  horse,  mare, 
mule,  jack,  jennet  or  any  neat  cattle,  sheep  or  goats,  or  any 
number  of  such  animals  upon  his  farm  or  premises,  who 


ESTRAYS.  417 

shall  desire  to  take  up  the  same  shall,  at  any  time  after  the 
expiration  of  twenty  days  from  the  finding  of  the  same,  go 
before  some  justice  of  the  peace  in  his  township  or,  if  there 
be  no  acting  justice  therein,  then  before  some  justice  of  a 
neighboring  township,  and  make  oath  as  follows  : 

1st.  That  he  has  made  diligent  inquiry  throughout  his 
neighborhood  to  ascertain  the  ownership  of  such  estrays, 
and  that  he  has  also  put  up,  ten  days  previously,  a  written 
notice  in  one  or  more  of  the  most  public  places  in  his  town 
ship  [naming  the  place  or  places  in  his  township]  setting 
forth  all  the  information  in  his  possession  concerning  the 
said  animals,  embracing  a  description  of  the  marks  and 
brands  thereof,  and  that  he  has  examined  the  county  rec 
ords  of  marks  and  brands,  and  that  he  found  none  of  the 
marks  or  brands  of  such  animal  or  animals  upon  record 
and  that  he  was  about  to  post  the  same. 

2d.  He  shall,  also,  at  the  same  time,  make  oath  that  the 
marks  and  brands  of  said  animal  or  animals  have  not  been 
altered  since  they  came  to  his  farm  or  premises  and  that 
the  owner  or  owners  are  unknown  to  him.  Gen.  Laws,  2607. 

[The  counties  of  San  Diego,  Santa  Barbara,  San  Luis  Obispo,  San  Ber 
nardino,  Los  Angeles  and  Monterey,  are  not  included  in  the  foregoing  sec 
tion,  nor  does  the  provision  in  regard  to  sheep  and  goats  apply  to  the  coun 
ties  of  Trinity,  Tuolumne  and  Sacramento.  See  Gen.  Laws,  2628,  as  to  the 
last  three  counties.] 

SEC.  2.  Form  of  notice  to  be  posted  at  least  ten  days 
before  going  before  a  justice  of  the  peace : 

Estray  Notice. 

There  is  now  on  my  premises,  in  ....  township,  county  of  . . . . ,  state  of  . 

[here  state  the  number  and  class  of  animals,  their  color  and  brands 

or  marks].  Said  animal  or  animals  were  first  discovered  by  me  on  my  prem 
ises  on  the  ....  day  of  . . . . ,  18 . . .  I  have  examined  the  county  records  of 
marks  and  brands  and  .have  found  none  of  the  marks  or  brands  of  said  ani 
mals  upon  record,  and  I  am  about  to  post  the  same. 

Dated  the day  of ,  A.D.  18  ... 


SEC.  3.  The  following  is  a  form  of  affidavit  which  the 
taker-up  must  make  at  the  expiration  of  ten  days  from  the 
time  of  posting  the  above  notice  and  after  the  expiration  of 
twenty  days  from  the  finding  of  the  animals  on  his  farm  or 
premises : 

53 


418  JUSTICES'  TREATISE. 


State  of ,       I 

county  of j  ' 

Personally  came before  me,  an  acting  justice  of  the  peace  in  and 

for  ....  township,  state  and  county  aforesaid,  who,  being  sworn,  says  that 
on  or  about  the  ....  day  of  *  . . .,  A.D.  18. .  [the  date  named  in  the  notice], 
he  found  the  following  described  animals  on  his  premises  or  farm  [here 
describe  them  as  in  the  notice]  ;  that  he  has  made  diligent  inquiry  through 
out  his  neighborhood  to  ascertain  the  ownership  of  said  estrays ;  that  he  did 
on  the  ....  day  of  . . . . ,  A.D.  18. .,  put  up  a  written  notice  at  [here  describe 
the  place  or  places],  in  said  township,  in  which  he  gave  all  the  information 
in  his  possession  concerning  the  said  animals,  embracing  a  description  of  the 
marks  and  brands  thereof;  that  he  has  examined  the  county  records  of  marks 
and  brands  and  that  he  found  none  of  the  marks  or  brands  of  such  animal  or 
animals  upon  record,  and  that  he  is  about  to  post  the  same,  and  that  the 
marks  and  brands  of  said  animals  have  not  been  altered  since  they  came  on 
his  farm  or  premises,  and  the  owner  or  owners  of  said  animals  are  unknown 
to  him.  

Sworn  and  subscribed  to  before  me,  this  ....  day  of  ....  A.D.  18 . . 


SEC.  4.  Appraisers.  —  When  the  affidavit  is  made  the 
justice  shall  appoint  two  disinterested  resident  household 
ers  to  appraise  and  describe  such  animal  or  animals.  Gen. 
Laws,  2609. 

SEC.  5.  Duty  of  Appraisers. — If  the  appraisers  are  not 
already  able  to  describe  and  appraise  such  estray,  they 
shall  as  soon  as  practicable  proceed  to  view  the  same,  and 
make  out  a  detailed  description  thereof,  stating  the  marks, 
brands,  supposed  age,  color,  stature  and  value,  of  each 
animal,  which  description  and  valuation  shall  be  signed  by 
the  appraisers,  and  be  sworn  to  before  the  justice  appoint 
ing  them.  Gen.  Laws,  2610. 

SEC.  6.  Record  of  Description. — The  justice  shall  imme 
diately  record  in  a  book,  kept  by  him  for  that  purpose,  a 
statement  of  the  taking  up,  with  a  description  as  sworn  to 
by  the  appraisers  and  their  appraisement.  Gen.  Laws,  2611. 

SEC.  7.  Copy  of  Entry  from  Entry-book. — The  justice 
shall  within  twenty  days,  if  the  estrays  have  not  been 
before  that  time  claimed  and  proven  by  the  true  owner, 
transmit  a  certified  copy  of  the  entry  in  hi's  estray  book  to 
the  county  recorder  of  the  county,  which  shall  be  by  him 
immediately  recorded  in  a  book  to  be  kept  for  that  purpose. 
Such  record  and  the  entry  in  the  justice's  book  shall  be  at 


ESTRAYS.  419 

all  times  subject  to  examination,  without  charge  or  fee. 
Gen.  Laws,  2612. 

SEC.  8.  Estrays  Eeclaimed. — If  the  owner  of  a  mule, 
jack,  jenny,  horse  or  mare,  that  has  been  posted  shall  with 
in  six  months  or  the  owner  of  neat  cattle  shall  within  three 
months  from  the.  time  of  posting  appear  and  claim  the  same, 
he  shall  satisfy  the  taker-up  thereof,  and  establish  his  claim 
before  some  justice  of  the  peace  of  the  proper  township  by 
evidence  satisfactory  to  the  justice.  This  being  done,  the 
justice  shall  order  the  animal  to  be  restored  to  him,  and 
shall  award  to  the  taker-up  his  expenses  and  costs,  which, 
together  with  his  own  costs,  the  claimant  must  pay.  The 
taker-up  shall  not  be  entitled  to  any  compensation  if  the 
animal  while  in  his  possession  has  been  by  him  or  by  his 
authority  worked,  ridden  or  used,  in  any  way.  Gen.  Laws, 
2613. 

SEC.  9.  If  not  reclaimed  in  the  time  provided  in  the 
preceding  section  the  owner  shall  forfeit  his  right  to  the 
animal,  and  the  taker-up  shall  become  the  owner  of  the 
animal  by  paying  into  the  county  treasury  one-half  of  the 
appraised  value  as  fixed  by  the  appraisers.  Gen.  Laws, 
2614. 

SEC.  10.  Not  to  be  Eemoved  from  County. — Such  animal 
shall  not  be  exchanged,  sold  or  disposed  of,  in  any  manner, 
or  be  removed  from  the  county  until  one-half  of  the  ap 
praised  value  shall  have  been  paid  into  the  treasury.  Gen. 
Laivs,  2615. 

SEC.  11.  Dying  or  Escaping. — If,  during  the  time  above- 
limited,  the  animal  die  or  escape,  the  taker-up  shall  not  be 
liable.  Gen.  Laws,  2616. 

SEC.  12.  Proceedings  ivhen  Money  Paid. — In  all  cases 
where  money  has  been  paid  into  the  county  treasury,  pur 
suant  to  the  tenth  section  of  this  act,  the  same  shall  be  kept 
in  a  separate  account  by  the  treasurer,  and  safely  held  in 
trust  for  the  space  of  six  months  after  it  is  so  paid  in,  to  be 
paid  over  to  the  true  owner  of  the  estray,  upon  such  owner 
within  the  said  time  producing  to  the  treasurer  the  certifi 
cate  of  the  proper  justice,  setting  forth  that  said  owner  had 
made  satisfactory  proof  of  ownership  within  the  six  months, 
as  aforesaid,  by  a  like  proceeding,  as  provided  for  in  the 


420  JUSTICES'  TREATISE. 

• 

sixth  section  of  this  act — the  treasurer  retaining  out  of  said 
money  his  own  percentage.  Gen.  Laws,  2617. 

SEC.  13.  Appropriation  of  Money . — All  moneys  paid  into 
the  county  treasury  under  the  provisions  of  this  act,  if  not 
legally  withdrawn  as  above  provided,  shall  become  a  part, 
and  belong  to  the  county  school  fund,  and  be  drawn  from 
the  county  treasury  on  the  warrant  of  the  county  superin 
tendent,  and  shall  be  exclusively  appropriated  to  the  county 
school  fund,  and  for  no  other  purpose.  Gen.  Laws,  2618. 

SEC.  14.  Penalty. — The  owner  of  any  estray  animal 
which  has  been  legally  taken  up,  or  for  the  taken  up  of 
which  proceedings  have  been  commenced  .under  this  act, 
knowing  the  same  to  have  been  posted,  shall  not  be  permit 
ted  to  take,  lead  or  drive,  the  same  from  the  premises  or 
possession  of  the  person  legally  possessed  thereof,  until 
proven  and  the  charges  paid;  and  any  person  knowingly 
and  willfully  violating  the  provisions  of  this  section  shall  be 
subject  to  all  the  penalties  that  he  would  be  subject  to 
under  the  statute  law :  provided,  he  had  no  claim  to  said 
animal.  Gen.  Laws,  2619. 

SEC.  15.  Taker-up  Guilty  of  Larceny. — If  any  person 
shall  take  into  use,  or  in  any  manner  dispose  of  any  lost  or 
estray  animal,  which  may  be  found  upon  his  farm  or  prem 
ises,  or  exercise  any  control  over  any  such  animal,  except 
in  case  said  animal  has  broken  into  his  lawful  inclosure, 
without  having  first  posted  the  same  or  having  proceeded 
to  post  any  such  animal,  shall  use  or  in  any  manner  dis 
pose  of  the  same  contrary  to  and  in  violation  of  the  pro 
visions  of  this  act,  he  shall  be  deemed  guilty  of  larceny  and 
punished  accordingly.  Gen.  Laws,  2620. 

SEC.  16.  Delinquency. — If  at  the  expiration  of  the  time 
specified  in  section  one  of  this  act  from  the  taking  up  of 
any  estray  under  this  act,  the  justice  before  whom  the  same 
was  posted,  his  successor  in  office  or  the  district  attorney 
of  the  county,  has  good  reason  to  believe  the  taker-up  has 
not  duly  paid  into  the  county  treasury  the  one-half  appraised 
value  as  herein  required,  it  is  hereby  made  the  special  duty 
of  said  justice  in  whose  custody  the  record  of  the  estray 
remains  or  the  district  attorney,  to  issue  a  notice  to  the  delin 
quent,  requesting  him  to  appear  before  the  justice  on  a  day 


ESTEAYS.  421 

specified,  and  show  cause,  if  any  lie  can,  why  judgment 
should  not  be  entered  against  him  in  favor  of  the  county  for 
the  sum.  Such  notice  may  be  delivered  to  the  sheriff  of  the 
county  or  any  constable  of  the  proper  township,  and  by 
him  served  on  the  proper  party.  Gen.  Laws,  2621. 

SEC.  17.  Judgment  against  Delinquent. — If  no  sufficient 
cause  be  shown,  the  justice  shall  enter  judgment  against 
the  delinquent  for  the  amount  due  the  county  with  costs, 
which  judgment  shall  be  &  lien  upon  all  the  property,  real 
and  personal,  belonging  to  the  delinquent  for  the  time  the 
same  is  entered.  Gen.  Laws,  2622. 

SEC.  18.  Fees. — In  all  cases  where  any  services  are  per 
formed  by  any  officer  or  officers  under  this  act,  their  fees 
shall  be  allowed  as  follows :  To  the  justice,  for  all  services 
connected  with  the  p'osting  of  the  animal  or  animals,  which 
shall  include  the  transcript  for  the  recorder,  two  dollars ;  the 
county  recorder,  for  recording  transcript  and  all  other  serv 
ices,  two  dollars;  which  fees  shall  be  paid  by  the  taker-up. 
Said  taker-up  shall  be  allowed  five  dollars  for  taking  up 
such  animal  or  animals  taken  up  at  the  same  time,  and 
one  dollar  per  head,  per  month,  for  the  keeping  of  the 
same,  provided  the  same  be  of  cattle ;  and  two  dollars,  pro 
vided  the  same  be  of  the  horse  kind;  and  twenty-five 
cents,  provided  the  same  be  sheep  or  goats.  Gen.  Laws, 
2623. 

[The  preceding  section  does  not  apply  to  Trinity,  Tuolumne  and  Sacra 
mento;  the  two  sections  following  do  apply  to  those  counties.] 

SEC.  19.  In  all  cases  wherein  any  services  are  performed 
by  any  officer  or  officers,  under  this  act,  their  fees  shall  be 
allowed  as  follows,  viz  :  To  the  justice,  for  all  services  con 
nected  with  the  posting  of  the  animal  or  animals,  which 
shall  include  the  transcript  for  the  recorder,  two  dollars; 
to  the  county  recorder,  for  recording  the  transcript,  one 
dollar;  for  all  services  performed  by  the  justice  under  this 
act,  other  than  the  above  and  for  all  services  performed  by 
other  officers,  the  same  fees  as  are  allowed  to  civil  officers 
in  similar  cases.  Gen.  Laws,  2624. 

SEC.  20.  Not  Applicable  to  Certain  Counties. — An  act 
entitled  "An  act  concerning  estray  animals,"  passed  May 
1st,  1851,  is  hereby  repealed :  provided,  that  nothing  in 


422  JUSTICES'  TREATISE. 

this  act  be  construed  so  as  to  apply  to  the  counties  of  San 
Diego,  Santa  Barbara,  San  Bernardino,  Los  Angeles,  Mon 
terey  and  San  Luis  Obispo. 

SEC.  21.  Appropriation  of  Moneys  arising  from  Sale  of 
Estrays. — It  shall  be  the  duty  of  the  justice  of  the  peace, 
upon  the  receipt  of  the  money  proceeding  from  the  sale  of 
such  stray  or  strays,  to  award  to  the  taker-up  the  amount 
as  provided  for  in  this  act,  and  pay  the  same ;  also,  five  per 
cent,  of  said  proceeds  to  the  constable,  and  pay  the  residue 
to  the  county  treasurer,  taking  his  receipt  for  the  same,  and 
transmit  it  to  the  county  recorder,  together  with  the  tran 
script  of  marks  and  brands  of  the  said  animal  or  animals. 
When  the  owner  of  such  animal  or  animals  shall  appear 
and  prove  the  same,  it  shall  be  the  duty  of  the  justice  of 
the  peace  to  transmit  a  notice  of  the  'same  to  the  county 
recorder.  Gen.  Laws,  2626. 

SEC.  22.  Marks  and  Brands. — Whenever  the  brand  or 
mark  of  any  animal  claimed  to  be  an  estray  under  the  pro 
visions  of  this  act,  is  recorded  in  the  office  of  the  county 
recorder  of  the  county  of  which  such  animal  may  be,  it 
shall  be  the  duty  of  any  person  upon  whose  premises  such 
animal  may  be,  to  give  the  owner  of  such  brand  or  ear 
mark,  so  recorded,  twenty  days'  notice  of  the  fact  that  such 
animal  is  claimed  by  him  to  be  an  estray.  It  shall  be  un 
lawful  for  any  person  to  post  or  take  up  any  animal  as  an 
estray  under  the  provisions  of  this  act,  the  brands  and  ear 
marks  of  which  are  so  recorded,  until  after  such  notice  has 
been  given.  Gen.  Laws,  2627. 

SEC.  23.  The  provisions  of  this  act  shall  not  apply  to 
the  counties  of  Trinity,  Tuolumne  and  Sacramento. 

SANTA  CLAEA  COUNTY. 

SEC.  24.  Concerning  Estrays. — Any  person  finding  at  any 
time  an  estray  horse,  mare,  mule,  jack,  jenny  or  any  estray 
cattle,  sheep,  hogs  or  goats,  or  any  number  of  such  animals 
upon  his  farm  or  other  inclosed  premises,  or  any  person 
finding  any  or  all  of  said  animals  running  at  large,  whether 
the  owners  of  such  animals  are  known  or  unknown,  may 
take  the  same  up  and  proceed  therewith  as  hereinafter 
directed ;  and  no  person  shall  remove  such  animals  from 


ESTRAYS.  423 

the  possession  of  tlie  taker-up,  or  from  the  possession  of 
the  officer  into  whose  hands  they  may  be  placed  for  the 
purposes  of  sale,  except  as  hereinafter  provided  Gen. 
Laws,  2629. 

SEC.  25.  Persons  taking  up  Animals — Duties  and  Notice — 
Fee  of  Recorder — Damages  to  Taker-up — Failure  of  Owner  to 
Pay.— The  person  taking  up  such  animal  or  animals,  shall 
confine  the  same  in  a  secure  place,  within  the  township 
where  they  are  taken  up,  and  shall  post  notices  containing 
a  description  of  them,  with  the  marks  and  brands,  if  they 
have  any,  and  a  statement  of  the  place  of  finding,  and  the 
place  where  such  animals  are  confined,  as  follows:  One 
notice  at  the  door  of  the  school-house  of  the  school  district 
where  they  were  found,  one  at  the  door  of  the  nearest  post- 
office,  and  shall  file  one  with  the  county  recorder  of  Santa 
Clara  county ;  and  if  the  mark  or  brand  of  the  owner  or 
owners  of  such  animals  is  recorded  in  the  office  where  such 
notice  is  filed,  the  recorder  shall,  within  three  days  after 
the  filing  of  such  notice,  deposit  a  copy  thereof  in  the  near 
est  post-office,  with  the  postage  paid  thereon,  addressed  to 
the  owner  or  owners  of  said  animals,  or  if  owned  by  a  com 
pany,  to  the  president  or  managing  agent  of  such  company, 
at  his  or  their  place  of  residence.  The  fee  of  the  recorder 
shall  be  twenty-five  cents  for  filing  the  notice,  and  fifty 
cents  for  serving  a  copy  thereof,  as  required  by  the  pro 
visions  of  this  section.  If  the  owner  of  the  animals  posted 
by  virtue  of  this  act  fails  to  appear  within  twenty  days 
thereafter,  and  prove  his  property,  and  pay  damages  to 
the  taker-up,  as  follows :  For  every  sheep,  the  sum  of  fifty 
cents;  for  every  hog  or  goat,  one  dollar,  and  for  other 
animals  mentioned  in  this  act,  two  dollars  per  head,  also, 
the  fees  of  the  recorder,  then  the  finder  of  such  animals 
may  give  notice  to  any  constable  of  the  county  of  the 
posting  of  such  animals.  Gen.  Laws,  2630. 

SEC.  26.  Constable  to  Sett — Provisos. — The  constable  noti 
fied  shall  immediately  proceed  to  sell  such  animals  at 
public  sale,  in  conformity  with  the  law  concerning  sales  on 
execution :  provided,  that  said  owner  or  owners  may  re 
deem  said  animals  at  any  time  before  sale,  by  paying  the 
aforesaid  damage,  and  such  costs  as  may  have  accrued,  to 


424  JUSTICES'  TREATISE., 

tlie  officers  ;  and  provided,  further,  that  such  owner  or 
owners  may  redeem  such  animals  at  any  time  within  six 
months  after  such  sale,  by  producing  satisfactory  evidence 
of  his  right  thereto,  and  paying  to  the  purchaser  the 
amount  of  the  purchase-money,  with  five  per  cent,  added 
thereto,  together  with  the  necessary  expenses  incurred  by 
said  purchaser  in  keeping  said  animals.  Gen.  Laws,  2631. 

SEC.  27.  Fees  of  Constables. — The  constable  making  such 
sales  shall  be  entitled  to  the  same  fees  as  are  provided  for 
by  law  for  sales  on  execution.  Gen.  Laws,  2632. 

SEC.  28.  Surplus. — The  constable  making  such  sales 
shall  pay  the  surplus  in  his  hands,  if  any  remain  after 
payment  of  costs  and  damages  as  above  prescribed,  to  the 
owner,  if  he  be  present  and  demand  the  same,  and  pro 
duce  satisfactory  evidence  of  his  right  thereto  ;  and  if  not, 
then  said  constable  shall  pay  such  surplus  to  the  county 
treasurer,  and  take  his  receipt  therefor,  which  receipt  he 
shall  file  with  the  county  recorder  of  Santa  Clara  county. 
If  any  person  or  persons  shall,  within  one  year  thereafter, 
prove,  to  the  satisfaction  of  the  board  of  supervisors  of 
said  county,  that  he  or  they  are  entitled  to  such  sum  or 
any  part  thereof,  said  board  of  supervisors  shall  order 
such  sum  to  be  paid  over  to  such  person  or  persons,  and 
if  not  so  ordained,  the  same  shall  become  a  part  of  the 
common  school  fund  of  said  county.  Gen.  Laws,  2633. 

SEC.  29.  Validity  of  Sales. — No  sale  made  by  virtue  of 
this  act  shall  be  valid  unless  the  provisions  of  section 
twenty-five  of  this  chapter  in  regard  to  notices,  be  fully 
complied  with.  Gen.  Laivs,  2634. 

SEC.  30.  Damages  when  more  than  Ten  Animals. — When 
more  than  ten  animals  belonging  to  one  man  are  posted  at 
one  time,  under  the  provisions  of  this  act,  the  damages 
for  all  above  that  number  shall  be  one-half  of  that  specified 
in  section  three  [twenty-five]  of  this  chapter.  Gen.  Laws, 
2635. 

SEC.  31.  All  acts  and  parts  of  acts  in  conflict  with  this 
act  are  hereby  repealed,  so  far  as  they  relate  to  the  county  of 
Santa  Clara:  provided,  that  nothing  herein  contained  shall 
be  construed  so  as  to  deprive  any  person  of  the  right  to  sue 
and  recover  damages  for  trespass  by  any  animals  nien- 
tined  in  this  act.  Gen.  Laws,  2636. 


ESTRAYS.  425 

ALAMEDA,  BUTTE,  CALAVERAS,  CONTKA  COSTA,  DEL  NORTE,  HUM- 
BOLDT,  KLAMATH,  LAKE,  MARIN,  HENDOCINO,  SAN  JOAQUIN, 
SAN  MATEO,  SISKQTOU,  SOLANO  AND  YOLO  COUNTIES. 

SEC.  32.  Notice  of  Taking  Up — Duty  of  Eecorder. — Any 
person  finding  an  estray  horse,  mare,  mule,  jack,  jenny  or 
any  estray  cattle,  sheep,  hogs  or  goats,  or  any  number  of 
them,  upon  his  farm  or  other  inclosed  premises,  may  post 
notices  containing  a  description  of  the  place  of  the  finding 
such  estrays,  with  all  visible  marks  and  brands  upon  them, 
as  follows :  one  notice  upon  the  school-house  door  of  the 
school  district  wherein  the  estrays  are  found,  and  upon  the 
door  of  the  nearest  post-office  and  file  another  with  the 
recorder  of  the  county  where  the  estrays  are  found;  and,  in 
case  the  mark  or  brand  of  the  owner  or  owners  of  the  es 
trays  is  recorded  in  the  office  where  the  notice  is  filed,  then 
the  recorder  shall,  within  three  days  after  the  filing  of  the 
notice,  deposit  a  copy  thereof  in  the  post-office,  with  ihe 
postage  paid  thereon,  addressed  to  the  owner  or  owners  of 
the  stock  or  if  owned  by  a  company  to  the  president  or 
managing  agent  of  such  company,  at  his  or  their  place  of 
residence.  The  fee  of  the  recorder  shall  be  twenty-five 
cents  for  filing  the  notice  and  fifty  cents  for  serving  a  copy 
thereof,  as  required  by  this  section.  Gen.  Laws,  2637. 

SEC.  33.  Damages,  etc. — If  the  owner  of  the  animals 
posted  by  virtue  of  this  act,  fails  to  appear  within  twenty 
days  thereafter  and  prove  his  property,  and  pay  damages 
to  the  taker-up,  as  follows :  For  sheep,  ten  cents  each ;  for 
hogs  and  goats,  fifty  cents  each,  and  for  all  other  stock,  one 
dollar  each,  also  the  fees  of  the  recorder,  then  the  finder 
of  such  estray  may  give  notice  to  some  constable  of  the 
county  of  the  posting  of  such  estray.  Gen.  Laws,  2638. 

SEC.  34  *  Sale  of  Estrays — Proviso. — The  constable  noti 
fied  shall  immediately  proceed  to  sell  such  estray  at  public 
sale,  in  conformity  with  the  law  concerning  sales  on  execu 
tion,  except  the  notice  of  the  sale  of  horses,  mares,  jacks, 
mules  and  jennies,  shall  not  be  less  than  twenty  days:  pro 
vided,  the  owners  of  estrays  may,  at  any  time  before  sale, 
retake  them  by  paying  the  aforesaid  damages  and  such  costs 
as  may  accrue  to  the  officer.  Gen.  Laws,  2639. 
54 


4:26  JUSTICES'  TREATISE. 

SEC.  35.  Fees. — The  constable  making  such  sale  shall  be 
entitled  to  the  same  fees  as  are  provided  by  law  for  sales  on 
execution.  Gen.  Laws,  2640. 

SEC.  36.  Surplus. — The  constable  making  such  sales  shall 
pay  the  surplus  in  his  hands,  if  any  remain  after  payment  of 
costs  and  damages  as  above  described,  to  the  owner,  if  he 
demand  the  same  within  three  months  after  sale,  and  if  not 
then  he  shall  pay  such  surplus  to  the  county  treasurer  and 
it  shall  become  a  part  of  the  school  fund.  Gen.  Laivs,  2641. 

SEC.  37.  No  sale  made  by  virtue  of  this  act  shall  be  valid 
unless  the  provisions  of  section  one,  in  regard  to  notices, 
be  fully  complied  with.  Gen.  Laws,  2642. 

SEC.  38.  Escaping  Stock. — Stock,  mentioned  in  this  act, 
escaping  from  the  lands  of  the  owners  or  keepers  into  an 
adjoining  farm  or  inclosure,-  shall  not  be  considered  estrays 
under  the  provisions  of  this  act.  Gen.  Laivs,  2643. 

SEC.  39.  In  case  above  ten  estrays  belonging  to  one  man 
are  posted  at  one  time,  then  the  damages  for  all  above  that 
number  shall  be  one-half  of  that  specified  above.  Gen. 
Laws,  2644. 

SEC.  40.  Applicable  to  Certain  Counties. — This  act  shall 
apply  only  to  the  counties  of  Napa,  San  Mateo,  Klamath, 
Del  Norte,  Mafin,  Humboldt,  Mendocino,  Lake,  Alameda, 
Calaveras,  Siskiyou  and  Contra  Costa.  It  shall  also  apply 
to  the  counties  of  Yolo,  Solano,  Butte  and  San  Joaquin, 
except  so  much  thereof  as  relates  to  hogs.  Gen.  Laws, 
2645. 

SEC.  42.  Estrays. — Any  person  finding  an  estray  horse, 
mare,  mule,  jack,  jenny  or  any  estray  cattle,  sheep,  hogs  or 
goats  or  any  number  of  them,  upon  his  farm  or  other  in 
closed  premises,  may  post  notices  containing  a  description 
of  the  place  of  the  finding  of  such  estrays,  with  all  visible 
marks  and  brands  upon  them,  as  follows :  One  notice  upon 
the  school-house  door  of  the  school  district  wherein  the 
estrays  are  found,  one  upon  the  door  of  the  nearest  post- 
office  and  file  another  with  the  recorder  of  the  county  where 
in  the  estrays  are  found;  and  in  case  the  mark  or  brand  of 
the  owner  or  owners  of  the  estrays  is  recorded  in  the  office 
where  the  notice  is  filed,  then  the  recorder  shall,  within 
three  days  after  the  filing  of  the  notice,  deposit  a  copy 


ESTRAYS.  427 

thereof  in  the  post-office,  with  the  postage  paid  thereon, 
addressed  to  the  owner  or  owners  of  the  stock  or,  if  owned 
by  a  company,  to  the  president  or  managing  agent  of  such 
company  at  his  or  their  place  of  residence.  The  fee  of 
the  recorder  shall  be  twenty-five  cents  for  filing  the  notice 
and  fifty  cents  for  serving  a  copy  thereof  as  required  by  this 
section.  Gen.  Laws,  2647. 

SEC.  43.  Payment  of  Damages. — If  the  owner  of  the  ani 
mals  posted  by  virtue  of  this  act  fails  to  appear  within  twenty 
days  thereafter  and  prove  his  property  and  pay  damages  to 
the  taker-up,  as  follows:  For  sheep,  ten  cents  each;  hogs 
and  goats,  fifty  cents  each,  and  for  all  other  stock,  one  dol 
lar  each,  also  the  fees  of  the  recorder,  then  the  finder  of 
such  estray  may  give  notice  to  some  constable  of  the  county 
of  the  posting  of  such  estray.  Gen.  Laws,  2648. 

SEC.  44.  Sale — Proviso. — The  constable  notified  shall 
immediately  proceed  to  sell  such  estrays  at  public  sale, 
in  conformity  with  the  law  concerning  sales  on  execution, 
'except  the  notice  of  the  sale  of  horses,  mares,  jacks,  mules 
and  jennies,  shall  not  be  less  than  twenty  days :  provided, 
the  owners  of  estrays  may,  at  any  time  before  the  sale,  re 
take  them  by  paying  the  aforesaid  damages  and  such  costs 
as  may  accrue  to  the  officer.  Gen.  Laws,  2649. 

SEC.  45.  Fees  of  Constables. — The  constable  making  such 
sale  shall  be  entitled  to  the  same  fees  as  are  provided  by 
law  for  sales  on  execution.  Gen.  Laws,  2650. 

SEC.  46.  Surplus. — The  constable  making  such  sales 
shall  pay  the  surplus  in  his  hands,  if  any  remain  after  pay 
ment  of  costs  and  damages  as  above  prescribed,  to  the 
owner,  if  he  demand  the  same  within  three  months  after 
sale,  and  if  not,  then  he  shall  pay  such  surplus  to  the  coun 
ty  treasurer,  and  it  shall  become  a  part  of  the  school  fund. 
Gen.  Laws,  2651. 

SEC.  47.  Validity  of  Sales. — All  sales  made  by  virtue  of 
this  act  shall  be  valid  if  the  provisions  of  section  forty-tAvo, 
in  regard  to  notices,  be  fully  complied  with,  otherwise  they 
shall  be  invalid.  Gen.  Laws,  2652. 

SEC.  48.  Stock,  mentioned  in  this  act,  escaping  from  the 
lands  of  the  owners  or  keepers  into  an  adjoining  farm  or 
inclosure,  shall  not  be  considered  estrays  under  the  provis 
ions  of  this  act.  Gen.  Laws,  2653. 


428  JUSTICES'  TEEATISE. 

SEC.  49.  In  case  above  ten  estrays  belonging  to  one  man 
are  posted  at  one  time,  the  damages  for  all  above  that  num 
ber  shall  be  one-half  of  that  specified  in  section  forty-three 
of  this  act.  Gen..  Laws,  2654. 

SEC.  50.  This  act  shall  apply  to  the  county  of  Napa  and 
take  effect  and  be  in  force  from  and  after  its  passage.  Gen. 
Laws,  2655. 

SEC.  51.  Acts  Repealed. — All  acts  and  parts  of  acts  in 
conflict  with  the  provisions  of  this  act  are  hereby  repealed, 
so  far  as  they  apply  to  Napa  county,  except  the  act  entitled 
an  act  concerning  hogs  found  running  at  large  in  the  coun 
ties  of  Colusa,  Tehama,  Butte,  Sonoma  and  Napa,  approved 
March  twenty-sixth,  eighteen  hundred  and  fifty-seven.  Gen. 
Laws,  2656. 

SUTTEB  COUNTY. 

SEC.  52.  The  law  in  regard  to  estrays  in  Sutter  county, 
passed  March  17th,  1856,  is  the  same  as  will  be  found  in  this 
chapter  from  section  one  to  eighteen,  inclusive,  except  sec 
tion  eight,  which  makes  no  difference  between  horses,  etc. 
and  neat  cattle,  and  sections  eighteen,  as  to  fees.  In  Sut 
ter  county  the  justice  of  the  peace  shall  receive  for  all 
services  connected  with  the  posting  of  animals,  which  shall 
include  the  transcript  for  the  recorder,  two  dollars.  The 
county  recorder  for  recording  the  transcript,  one  dollar.  The 
justice  for  all  services  under  this  act,  other  than  the  above 
and  for  all  services  performed  by  other  officers,  the  same 
fees  as  are  allowed  as  to  civil  officers  in  similar  cases. 


EVIDENCE.  429 


CHAPTER     XLVII. 


EVIDENCE. 


SECS.  SECS. 


IN  GENERAL 1  -15 

SUBPENAS  AND  SERVICE  OF 16-25 

WITNESS'  PRIVILEGE 26 

DISOBEDIENCE  TO  SUBPENA  . .  27 


IMPEACHMENT  OF 45 

CROSS  EXAMINATION 46 

EECORDS  AND  CERTIFICATE  OF  . .  47-58 
SECONDARY  EVIDENCE 59-71 


ADVERSE  PARTY  WITNESS..  .    , .  28-33  I  RESPECTING  MINING  CLAIMS.  . .  72-74 


WHO  MAY  NOT  BE  WITNESSES  .  .  .  34-42 
ORDER  FOR  INSPECTION  OF  BOOK, 

ETC 43 

OATH  TO  WITNESSES  . .  44 


AFFIDAVITS 75-77 

DEPOSITIONS  IN  THE  STATE 78-82 

DEPOSITIONS  OUT  OF  THE  STATE.  83-91 


In  General. 

SECTION!.  What  is  evidence?  Evidence  is  that  which 
makes  clear  or  ascertains  the  very  fact  or  point  at  issue  (3 
SI.  Com.  367),  or  it  is  whatever  is  lawfully  exhibited  to  a 
court  and  jury  by  which  any  matter  of  fact,  the  truth  of 
which  is  submitted  to  investigation,  is  established  or  dis 
proved.  1  GreenL  Ev.  Sec.  1;  1  Phil.  Ev.  1. 

SEC.  2.  This  word  and  the  words  "proof,"  "testimony" 
and  "witness,"  are  sometimes  used  as  synonymous  terms, 
but  such  is  improper — their  meanings  are  different.  By 
evidence  is  meant  that  which  establishes  the  fact  or  truth  of 
a  proposition;  proof  is  the  effect  of  evidence;  testimony  is 
simply  the  statement  of  a  witness  under  oath,  and  the  iv  it- 
ness  is  he  who  testifies  to  matters  of  fact  known  by  him. 
3  Bouv.  List.  336. 

SEC.  3.  Evidence  is  classified,  as  competent,  which  means 
that  which  the  law  authorizes  and  the  fact  to  be  proved  re 
quires;  as  credible,  or  that  which  may  be  believed;  as  incred 
ible,  or  that  which  cannot  be  believed;  as  satisfactory,  or 
that  which  induces  belief  that  the  thing  is  true;  as  cumula 
tive,  which  goes  to  prove  the  thing  already  proved.  Evi 
dence  of  a  circumstance,  different  from  other  circumstances, 
already  testified  to,  but  tending  to  prove  the  same  thing,  is 
not  cumulative ;  as  direct,  or  that  which  precisely  proves  the 
fact  in  question;  or  as  indirect,  which  does  not  prove  the 
fact  in  question  but  proves  some  other  fact,  the  certainty 


430  JUSTICES'  TREATISE. 

of  which   leads  to  the  discovery  of  the  truth  of  the  one 
sought. 

SEC.  4.  Certain  rules  of  evidence  are  laid  down  to  guide 
magistrates  in  the  discovery  of  truth.  In  the  establish 
ment  of  these  rules  the  law  intended  to  adopt  the  best 
means  of  terminating  disputes  among  men.  A  strict  ob 
servance  of  these  rules  seldom  fails  to  produce  convictions 
as  strong  as  consciousness;  and  this  strong  persuasion  is 
termed  "moral  certainty, "—a  condition  of  the  mind  only 
less  satisfactory  than  demonstration  or  mathematical  cer 
tainty. 

SEC.  5.  It  is  absolutely  necessary  that  every  magistrate 
should  enforce  the  laws  of  evidence  in  the  investigation  of 
every  fact  material  to  issues  presented  in  his  court.  The 
rules  which  govern  the  production  and  admission  of  testi 
mony  may  be  found  under  this  title,  and  will  be  considered 
as  to  the  nature,  its  objects,  the  instruments  by  which  facts 
are  established  and  its  effect. 

SEC.  6.  In  considering  the  nature  of  evidence,  we  first 
present  that  which  is  primary,  or  the  best  of  which  the  case 
in  its  nature  is  susceptible.  For  example  :  When  a  written 
contract  has  been  entered  into,  and  the  object  is  to  prove 
what  it  was,  the  writing  itself  is  primary  or  the  best  which 
can  be  produced. 

SEC.  7.  Secondary  proof  can  only  be  employed  or  ad 
mitted  when  the  primary  is  lost  or  destroyed.  In  that 
event  it  becomes  the  best  evidence  attainable.  It  is  a  rule, 
that  before  secondary  evidence  is  admissible,  it  must  be 
made  to  appear  that  the  primary  cannot  be  obtained.  It 
often  happens,  however,  that  the  primary  evidence,  al 
though  not  lost  or  destroyed,  cannot  be  produced  in  court : 
such  are  inscriptions  on  walls,  fixed  tables,  mural  monu 
ments,  grave-stones  and  the  like.  These,  from  their  na 
ture,  cannot  be  produced  in  court ;  secondary  evidence 
must,  therefore,  be  admitted  concerning  them.  Certain 
records,  such  as  judicial  records,  registered  books  and  the 
like,  may  be  proved  by  authenticated  copies.  These  last- 
mentioned  are  made  evidence  by  special  law.  2  Stark.  274. 

SEC.  8.  Positive  evidence,  is  that  which,  if  believed, 
establishes  the  truth  or  falsehood  of  a  fact  in  issue,  and 


EVIDENCE.  431 

does  not  arise  from  any  presumption.  Evidence  is  posi 
tive  when  the  facts  in  dispute  are  communicated  by  those 
who  have  the  actual  knowledge  of  them  by  means  of  their 
senses.  1  Phil.  Ev.  116. 

SEC.  9.  Circumstantial  or  presumptive  evidence,  is  the 
proof  of  collateral  facts,  and  differs  from  positive  proof  in 
this,  that  it  never  proves  directly  the  fact  in  question. 
There  is  a  difference  between  presumptuous  and  circum 
stantial  evidence.  Circumstantial  evidence  is  the  means 
employed  to  come  to  the  knowledge  of  one  or  more  facts 
in  order  to  establish  the  existence  of  another ;  a  presump 
tion  is  an  inference  as  to  the  existence  of  one  fact  from  the 
existence  of  some  other  fact,  founded  on  a  previous  expe 
rience  of  their  connection.  1  Phil.  Ev.  116. 

SEC.  10.  To  constitute  such  a  presumption,  a  previous 
experience  of  the  connection  between  the  known  and  in 
ferred  facts  is  essential.  This  connection  must  be  of  such 
a  nature  that,  as  soon  as  the  evidence  of  one  is  established, 
admitted  or  assumed,  the  inference  as  to  the  existence  of 
the  other  immediately  arises,  independently  of  any  reason 
ing  upon  the  subject.  Presumptions  are  either  legal  and 
artificial  or  natural.  3  Bouv.  List.  345. 

SEC.  11.  Legal  presumptions  consist  of  those  rules  which 
in  certain  cases  either  forbid  or  dispense  with  any  further 
inquiry,  and  are  conclusive  or  which  cannot  be  disputed, 
and  inconclusive  or  which  can  be  disputed. 

SEC.  12.  A  conclusive  presumption,  is  one  which  the  law 
will  not  permit  to  be  overcome  by  any  form  of  proof.  The 
law,  for  instance,  assumes  that  an  infant  under  the  age  of 
twenty-one  years  is  defective  in  judgment  and,  therefore, 
cannot  bind  himself  by  a  contract  against  his  interest. 
Now,  in  defending  an  infant  in  a  suit  to  enforce  such 
contract,  it  will  only  be  necessary  to  prove  he  was  an  in 
fant  under  the  age  of  twenty-one  years  when  he  made  the 
contract,  and  the  law,  without  further  proof,  presumes  his 
incapacity  to  contract,  and  will  not  permit  proof  to  remove 
the  presumption.  3  Bouv.  List.  348. 

SEC.  13.  Inconclusive  presumptions  may  be  overcome 
by  opposing  proof.  These,  like  those  above  considered, 
are  the  result  of  general  experience  that  there  is  a  connec- 


432  JUSTICES'  TREATISE. 

tion  between  certain  facts  and  things,  the  one  being  the 
companion  of  the  other.  For  instance :  The  law  presumes 
that  a  person  in  the  possession  of  personal  property  is  the 
owner  of  it ;  still  it  is  a  presumption  which  may  be  contra 
dicted  by  proof.  3  Bouv.  Inst.  349. 

SEC.  14.  Natural  presumptions  differ  from  mere  pre 
sumptions  of  law  in  this  essential  respect,  that  the  latter 
depend  upon  and  are  a  branch  of  the  particular  system  of 
jurisprudence  to  which  they  belong ;  but  mere  natural  pre 
sumptions  are  derived  wholly  by  means  of  the  common 
experience  of  mankind,  without  the  aid  or  control  of  any 
particular  rule  of  law,  but  simply  from  the  course  of  nature 
and  the  habits  of  society. 

SEC.  15.  Hearsay  evidence,  is  that  kind  of  knowledge 
which  the  witness  states  he  has  received  or  heard  from 
others,  and  relates  to  what  is  written  as  well  as  to  what  is 
spoken.  1  Greenl.  Sec.  100. 

[The  following  statutes  and  decisions  of  the  supreme  court  of  this  state, 
will  furnish  to  justices  of  the  peace  a  sufficient  guide  to  direct  them  in  mat 
ters  of  testimony  :]  • 

Subpenas,  and  Service  of. 

SEC.  16.  Justices  may  issue  subpenas  in'  any  action  or 
proceeding  in  the  courts  held  by  them  to  any  part  of  the 
county.  Gen.  Laws,  5550. 

SEC.  17.  The  provisions  of  title  eleven  of  this  act,  so  far 
as  the  same  are  consistent  with  the  jurisdiction  and  powers 
of  justices'  courts,  shall  be  applicable  to  justices'  courts, 
and  to  actions  and  proceedings  therein.  Gen.  Laws,  5551. 

SEC.  18.  A  subpena  may  require  not  only  the  attendance 
of  the  person  to  whom  it  is  directed,  at  a  particular  time 
and  place,  to  testify  as  a  witness,  but  may  also  require  him 
to  bring  any  books,  documents  or  other  things,  in  his  con 
trol,  to  be  used  as  evidence.  No  person  shall  be  required 
to  attend  as  a  witness  before  any  court,  judge,  justice  or 
any  other  officer,  out  of  the  county  in  which  he  resides, 
unless  the  distance- be  less  than  thirty  miles  from  his  place 
of  residence  to  the  place  of  trial.  The  subpena  shall  be 
issued  as  follows : 

1st.  To  require  attendance  before  a  court  or  at  the  trial 
of  an  issue  therein,  it  shall  be  issued  in  the  name  and  under 


EVIDENCE.  433 

\ 

the  seal  of  tlie  court  before  which  the  attendance  is  required 
or  in  which  the  issue  is  pending. 

2d.  To  require  attendance  out  of  court,  before  a  judge, 
justice  or  other  officer,  authorized  to  administer  oaths  or 
take  testimony  in  any  matter  under  the  laws  in  this  state,  it 
shall  be  issued  by  the  judge,  justice  or  other  officer,  before 
whom  the  attendance  is  required. 

3d.  To  require  attendance  before  a  commissioner  appoint 
ed  to  take  testimony  by  a  court  of  a  foreign  country,  or  of 
the  United  States,  or  of  any  other  state  in  the  United 
States,  or  of  any  other  district  or  county  within  this  state, 
it  may  be  issued  by  any  judge  or  justice  of  the  peace,  iii 
places  within  their  respective  jurisdiction,  with  like  power 
to  enfore  attendance,  and,  upon  certificate  of  contumacy  to 
said  court,  to  punish  contempt  of  their  process,  as  such 
judge  or  justice  could  exercise  if  the  subpena  directed  the 
attendance  of  the  witness  before  their  courts  in  a  matter 
pending  therein.  Gen.  Laws,  5551,  5340,  5341. 

SEC.  19.  The  service  of  a"  subpena  shall  be  made  by 
showing  the  original,  and  delivering  a  copy  or  a  ticket  con 
taining  its  substance,  to  the  witness  personally,  giving  or 
offering  to  him  at  the  same  time,  if  demanded  by  him,  the 
fees  to  which  he  is  entitled  for  travel  to  and  from  the  place 
designated,  and  one  day's  attendance  there.  Such  service 
may  be  made  by  any  person.  If  a  witness  be  concealed  in 
a  building  or,  vessel,  so  as  to  prevent  the  service  of  a  sub 
pena  upon  him,  any  court  or  judge  or  any  officer  issuing 
the  subpena  may,  upon  proof  by  affidavit  of  the  conceal 
ment  and  of  the  materiality  of  the  witness,  make  an  order 
that  the  sheriff  of  the  county  serve  the  subpena ;  and  the 
sheriff  shall  serve  it  accordingly,  and  for  that  purpose  may 
break  into  the  building  or  vessel  where  the  witness  is  con 
cealed.  A  person  present  in  court,  or  before  a  judicial 
officer,  may  be  required  to  testify,  in  the  same  manner  as  if 
he  were  in  attendance  upon  a  subpena  issued  by  such  court 
or  officer.  Gen.  Laws,  5342-5344. 

SEC.  20.     In  case  of  failure  of  a  witness  to  attend,  the 
court  or  officer  issuing  the  subpena,  upon  proof  of  the  serv 
ice  thereof  and  of  the  failure  of  the  witness,  may  issue  a 
warrant  to  the  sheriff  of  the  county  to  arrest  the  witness 
55 


434  JUSTICES'  TKEATISE. 

and  bring  him  before  the  court  or  officer  where  his  attend 
ance  was  required.  Gen.  Laivs,  5349. 

SEC.  21.  If  the  witness  be  a  prisoner,  confined  in  a  jail 
or  prison  within  this  state,  for  any  other  cause  than  a  sen 
tence  for  felony,  an  order  for  his  examination  in  the  prison 
upon  deposition,  or  for  his  temporary  removal  and  produc 
tion  before  a  court  or  officer  for  the  purpose  of  being  orally 
examined,  may  be  made  as  follows : 

1st.  By  the  court  itself  in  which  the  action  or  special 
proceeding  is  pending. 

2d.  By  a  judge  of  the  supreme  court,  district  court  or 
county  judge  of  the  county  where  the  action  or  proceeding 
is  pending,  if  before  a  judge  or  other  person  out  of  court. 

Such  order  can  only  be  made  upon  affidavit,  showing 
the  nature  of  the  action  or  proceeding,  the  testimony  ex 
pected  from  the  witness  and  its  materiality.  If  the  wit 
ness  be  imprisoned  in  the  county  where  the  action  or  pro 
ceeding  is  pending,  and  for  a  cause  other  than  a  sentence 
for  felony,  his  production  may  be  required.  In  all  other 
cases,  his  examination,  when  allowed,  shall  'be  taken  upon 
deposition.  Gen.  Laws,  5350-5352. 

SEC.  22.  When  a  witness  does  not  understand  and  speak 
the  English  language,  an  interpreter  shall  be  sworn  to  in 
terpret  for  him.  Any  person,  a  resident  of  the  proper 
county,  may  be  summoned  by  any  court  or  judge  to  appear 
before  such  court  or  judge  to  act  as  interpreter  in  any 
action  or  proceeding.  The  summons  shall  be  served  and 
returned  in  like  manner  as  a  subpena.  Any  person  so 
summoned  shall,  for  a  failure  to  attend  at  the  time  and 
place  named  in  the  summons,  be  deemed  guilty  of  a  con 
tempt,  and  may  be  punished  accordingly.  Gen.  Laws, 
5339. 

SEC.  23.  A  justice  of  the  peace  may  issue  summons  to 
any  person,  a  resident  of  the  proper  township,  to  appear 
before  him,  at  his  office,  to  act  as  interpreter  in  any  action 
or  proceeding  in  the  courts  held  by  him.  Such  summons 
shall  be  served  and  returned  in  like  manner  as  a  subpena 
issued  by  a  justice.  Any  person  so  summoned  shall,  for  a 
failure  to  attend  at  the  time  and  place  named  in  the  sum 
mons,  be  deemed  guilty  of  a  contempt,  and  may  be  pun 
ished  accordingly.  Gen.  Laws,  5550. 


EVIDENCE.  435 

SEC.  24.  Every  person  who  has  been  in  good  faith 
served  with  a  subpena  to  attend  as  a  witness  before  a 
court,  judge,  commissioner,  referee  or  other  person,  in  a 
case  where  the  disobedience  of  the  witness  may  be  pun 
ished  as  a  contempt,  shall  be  exonerated  from  arrest  in  a 
civil  action  while  going  to  the  place  of  attendance,  neces 
sarily  remaining  there  and  returning  therefrom.  The  ar 
rest  of  a  witness  contrary  to  the  preceding  clause  shall  be 
void ;  but  an  officer  shall  not  be  liable  to  the  party  for 
making  the  arrest  in  ignorance  of  the  facts  creating  the 
exoneration,  but  shall  be  liable  for  any  subsequent  deten 
tion  of  the  party,  if  such  party  claim  the  exemption  and 
make  an  affidavit  stating: 

1st.  That  he  has  been  served  with  a  subpena  to  attend 
as  a  witness  before  a  court,  officer  or  other  person,  speci 
fying  the  same,  the  place  of  attendance  and  the  actioi?  or 
proceeding  in  which  the  subpena  was  issued. 

2d.  That  he  has  not  been  thus  served  by  his  own  pro 
curement  with  the  intention  of  avoiding  an  arrest. 

3d.  That  he  is  at  the  time  going  to  the  place  of  attend 
ance,  or  returning  therefrom  or  remaining  there,  in  obedi 
ence  to  the  subpena.  The  affidavit  may  be  taken  by  the 
officer,  and  shall  exonerate  him  from  liability  for  discharg 
ing  the  witness  when  arrested.  Gen.  Laws,  5353. 

SEC.  25.  It  shall  be  the  duty  of  a  witness,  duly  served 
with  a  subpena,  to  attend  at  the  time  appointed  with  any 
papers  under  his  control  required  by  the  subpena,  to  an 
swer  all  pertinent  and  legal  questions;  and,  unless  sooner 
discharged,  to  remain  till  the  testimony  is  closed.  A  wit 
ness  shall  answer  questions  legal  and  pertinent  to  the  mat 
ter  in  issue,  though  his  answer  may  establish  a  claim 
against  himself;  but  he  need  not  give  an  answer  which  will 
have  a  tendency  to  subject  him  to  punishment  for  a  felony; 
nor  need  give  an  answer  which  will  have  a  direct  tendency 
to  degrade  his  character,  unless  it  be  to  the  very  fact  in 
issue,  or  to  a  fact  from  which  the  fact  at  issue  would  be  pre 
sumed.  But  a  witness  shall  answer  as  to  the  fact  of  his 
previous  conviction  for  felony.  Gen.  Laws,  5345-5346. 


436  JUSTICES'  TREATISE. 

Witness'  Privilege. 

SEC.  16.  A  witness  is  privileged  from  answering  in  two 
distinct  cases,  resting  upon  entirely  different  grounds.  1st. 
When  the  answer  tends  to  subject  him  to  criminal  punish 
ment.  2d.  When  the  answer  is  not  to  any  matter  pertinent 
to  the  issue,  and  the  answer  would  disgrace  him,  and  when 
upon  cross-examination  he  is  asked  a  question,  the  answer 
to  which  would  tend  to  destroy  his  credibility  as  a  witness. 
The  rule  as  laid  down  in  2  Phillips  on  Ev.  (431),  is  the  true 
rule.  The  practice  act  (Sec.  408),  substantially  adopts  the 
same  rule,  except  when  the  witness  has  been  convicted  of  a 
felony.  The  difference  between  the  two  classes  of  cases  is 
farther  shown  from  the  fact,  that  where  the  answer  would 
tend  to  disgrace  a  witness,  and  the  question  is  not  pertinent, 
the  court  will  not  even  permit  the  question  to  be  asked; 
while  in  the  other  case,  the  question  may  be  asked,  and  the 
witness  must  put  himself  upon  his  privilege.  When  the 
question  is  properly  put,  and  the  witness  refuses  to  answer, 
his  refusal  is  given  under  oath,  and  that  refusal  subjects 
him,  practically  and  morally,  to  the  same  disgrace  as  if  he 
had  answered.  It  is  not,  then,  upon  the  ground  that  the 
answer  would  disgrace  the  witness  that  he  is  privileged 
from  answering'  in  a  case  where  his  answer  would  tend  to 
subject  him  to  criminal  punishment,  but  solely  upon  the 
ground  that  he  shall  not  be  compelled  to  give  evidence 
against  himself  in  a  criminal  case.  The  provision  of  the 
constitution  was  solely  intended  to  protect  the  witness  from 
being  compelled  to  testify  against  himself  in  regard  to  a 
criminal  offense,  and  when  the  answer  would  not  involve 
criminal  consequences  the  constitution  has  no  provision 
that  will  reach  the  case.  The  amendatory  act  of  1855,  pro 
vides  that:  "The  testimony  given  by  such  witness  shall  in 
no  instance  be  given  against  himself  in  any  criminal  prose 
cution  ;"  the  witness  having  thus  the  protection  contempla 
ted  by  the  constitution  is  bound  to  answer.  7  Gal.  185. 

Disobedience    to  Subpena. 

SEC.  27.  Disobedience  to  a  subpena,  or  a  refusal  to  be 
sworn,  or  to  answer  as  a  witness  or  to  subscribe  an  affi 
davit  or  deposition  when  required,  may  be  punished  as  a 


EVIDENCE.  437 

contempt  by  the  court  or  officer  issuing  the  subpena  or 
requiring  the  witness  to  be  sworn,  and  if  the  witness  be 
a  party,  his  complaint  may  be  dismissed  or  his  answer 
stricken  out.  A  witness  disobeying  a  subpena  shall  also 
forfeit  to  the  party  aggrieved  the  sum  of  one  hundred  dol 
lars,  and  all  damages  which  he  may  sustain  by  the  failure 
of  the  witness  to  attend,  which  forfeiture  and  damages  may 
be  recovered  in  a  civil  action.  Gen.  Laws,  5347,  5348. 

Adverse  Party— Witness. 

SEC.  28.  If  an  adverse  party  refuse  to  attend  and  testify 
at  the  trial,  or  to  give  his  deposition  before  trial  or  upon 
a  commission  when  required,  his  complaint  or  answer  may 
be  stricken  out,  and  judgment  taken  against  him;  and  he 
may  be  also,  in  the  discretion  of  the  court,  proceeded 
against  as  in  other  cases  for  a  contempt.  Gen.  Laws,  5357. 

SEC.  29.  The  party  who  calls  upon  an  adverse  party  to 
testify  makes  him  a  witness.  By  making  him  a  witness,  he 
waives  his  inconipetency  to  be  heard  for  himself,  or  for  his 
co-defendant  or  co-plaintiff.  8  Cal.  580. 

SEC.  30.  All  persons,  without  exception,  otherwise  than 
as  specified  in  this  act,  may  be  witnesses  in  any  action 
or  proceeding.  Facts  which  have  heretofore  caused  the 
exclusion  of  testimony  may  still  be  shown  for  the  purpose 
of  affecting  its  credibility.  No  person  shall  be  disqualified 
as  a  witness  in  any  action  or  proceeding  on  account  of  his 
opinions  on  matters  of  religious  belief,  or  by  reason  of  his 
interest  in  the  event  of  the  action  or  proceeding  as  a  party 
thereto  or  otherwise;  but  the  party  or  parties  thereto,  and 
the  person  in  whose  behalf  such  action  or  proceeding  may 
be  brought  or  defended,  shall,  except  as  hereinafter  except- 
ed,  be  competent  and  compellable  to  give  evidence,  either 
viva  voce  or  by  deposition  or  upon  a  commission,  in  the 
same  manner  and  subject  to  the  same  rules  of  examination 
as  any  other  witness,  on  behalf  of  himself,  or  either  or  any 
of  the  parties  to  the  action  or  proceeding.  Gen.  Laws, 
5329,  5330. 

SEC.  31.  Statutes  allowing  persons  to  testify  in  their 
own  cases  are  in  derogation  of  the  common-law  rule.  They 
open  a  wide  door  to  perjury,  and  cannot  be  too  strictly 
construed  by  courts.  2  Cal.  63. 


'' 


438  JUSTICES'  TREATISE. 

SEC.  32.  The  practice  act,  section  three  hundred  and 
ninety-two,  provides  "that  no  person  offered  as  a  witness 
shall  be  excluded  on  account  of  his  opinion  on  matters  of 
religious  belief,"  and  this  follows  the  fourth  section  of  the 
first  article  of  the  constitution.  We  can  assign  to  this  lan 
guage  no  other  import  than  that  a  witness  is  competent 
without  any  respect  to  his  religious  sentiments  or  convic 
tions — the  law  leaving  this  matter  of  competency  to  legal 
sanctions,  or,  at  least,  to  considerations  independent  of 
religious  sentiments  or  convictions.  17  Col.  612. 

SEC.  33.  The  right  of  a  party  to  an  action  to  testify 
therein  in  his  own  behalf  depends  entirely  upon  the  statute. 
22  CaL  185. 

SEC.  34.     The  following  persons  shall  not  be  witnesses : 

1st.  Those  who  are  of  unsound  mind  at  the  time  of  their 
production  for  examination. 

2d.  Children  under  ten  years  of  age,  who,  in  the  opinion 
of  the  court,  appear  incapable  of  receiving  just  impressions 
of  the  facts  respecting  which  they  are  examined,  or  of 
relating  them  truly.  Gen.  Laius,  5331,  5332. 

SEC.  35.  There  is  no  precise  age  within  which  children 
are  excluded  from  testifying.  Their  competency  is  to  be 
determined,  not  by  their  age,  but  by  the  degree  of  their 
understanding  and  knowledge.  It  is  essential  that  they 
should  possess  sufficient  intelligence  to  receive  just  impres 
sions  of  the  facts  respecting  which  they  are  examined,  suffi 
cient  capacity  to  relate  them  correctly,  and  sufficient  in 
struction  to  appreciate  the  nature  and  obligation  of  an  oath. 
It  is  for  the  court  to  decide  the  question  of  their  compe 
tency  when  they  are  offered  as  witnesses.  If  over  fourteen 
years  of  age,  the  presumption  is  that  they  possess  the 
requisite  knowledge  and  understanding;  but,  if  under  that 
age,  the  presumption  is  otherwise,  and  it  must  be  removed 
upon  their  examination  by  the  court,  or  under  its  direction 
and  in  its  presence,  before  they  can  be  sworn.  10  CaL  66, 
67. 

SEC.  36.  Mongolians,  Chinese,  or.  Indians,  or  persons 
having  one-half  or  more  of  Indian  blood,  in  an  action  or 
proceeding  wherein  a  white  person  is  a  party.  Gen.  Laivs, 
5332. 


EVIDENCE.  439 

SEC.  37.  The  term  ""Indian,"  as  used  in  the  statute, 
includes  the  Chinese  or  Mongolian  race  ;  and  Chinese  can 
not  be  witnesses  in  suits  to  which  white  persons  are  parties. 
13  Cat.  73.  It  is  incumbent  upon  a  party  basing  an  objec 
tion  to  the  competency  of  a  witness  upon  his  color  to  prove 
the  disability  by  clear  and  indubitable  evidence.  14  CaL 
145. 

SEC.  38.  Persons  against  whom  judgment  has  been  ren 
dered  upon  a  conviction  for  a  felony,  unless  pardoned  by 
the  governor,  or  such  judgment  has  been  reversed  on  ap 
peal.  A  husband  may  be  witness  for  or  against  his  wife, 
and  a  wife  may  be  a  witness  for  or  against  her  husband,  and 
where  husband  and  wife  are  parties  to  an  action  or  proceed 
ing,  they,  or  either  of  them,  may  be  examined  as  witnesses 
in  their  own  behalf,  or  in  behalf  of  each  other,  or  in  behalf 
of  any  of  the  parties  thereto,  the  same  as  any  other  witness; 
but  this  section  shall  not  apply  to  cases  of  divorce,  neither 
shall  any  husband  or  wife  be  competent  or  compellable  to 
disclose  any  communication  made  to  him  or  her  by  the 
other  during  marriage.  An  attorney  or  counselor  shall  not, 
without  the  consent  of  his  client,  be  examined  as  a  witness 
as  to  any  communication  made  by  the  client  to  him,  or  his 
advice  given  thereon,  in  the  course  of  professional  employ 
ment.  Gen.  Laivs,  5333,  5334. 

SEC.  39.  The  knowledge  of  the  agent  in  the  course  of  the 
agency  is  the  knowledge  of  the  principal.  And  while  the 
attorney  is  not  permitted  to  disclose  the  confidential  com 
munications  of  his  client,  yet  if  he  acquires  information 
apart  from  any  such  communications,  he  is  not  protected 
from  disclosing  it.  12  CaL  377. 

SEC.  40.  A  clergyman  or  priest  shall  not,  without  the 
consent  of  the  person  making  the  confession,  be  examined 
as  a  witness  as  to  any  confession  made  to  him  in  his  pro 
fessional  character,  in  the  course  of  discipline  enjoined  by 
the  church  to  which  he  belongs.  A  licensed  physician  or 
surgeon  shall  not,  without  the  consent  of  his  patient,  be 
examined  as  a  witness  as  to  any  information  acquired  in 
attending  the  patient,  which  was  necessary  to  enable  him  to 
prescribe  or  act  for  the  patient :  provided,  however,  in  any 
suit  or  prosecution  against  the  physician  or  surgeon  for 


440  JUSTICES'  TREATISE. 

malpractice,  if  the  patient  or  party  suing  or  prosecuting 
shall  give  such  consent  and  any  such  witness  shall  give  tes 
timony,  then  such  physician  or  surgeon,  defendant,  may  call 
any  other  physicians  or  surgeons  as  witnesses  on  behalf  of 
defendant,  without  the  consent  of  such  patient  or  party  su 
ing  or  prosecuting.  A  public  officer  shall  not  be  examined 
as  a  witness  as  to  communications  made  to  him  in  official 
confidence,  wrhen  the  public  interest  would  suffer  by  the 
disclosure.  The  judge  himself  or  any  juror  may  be  called 
as  a  witness  by  either  party;  but  in  such  case  it  shall  be 
in  the  discretion  of  the  court  or  judge  to  order  the  trial  to 
be  postponed  or  suspended  and  to  take  place  before  another 
judge  or  jury.  Gen.  Laws,  5335-5338. 

SEC.  41.  A  justice  before  whom  a  cause  is  tried  cannot 
be  sworn  as  a  witness  in  the  cause  by  another  justice.  He 
alone  is  competent  to  swear  witnesses  in  New  York.  1 
Johns.  520.  But  if  by  the  return  to  the  certiorari  it  does 
not  appear  that  any  objection  was  made,  it  will  be  intended 
that  he  was  admitted  by  consent.  8  Johns.  470. 

SEC.  42.  The  whole  tendency  of  the  modern  -decisions, 
with  reference  to  the  competency  of  witnesses,  is  to  relax 
rather  than  to  extend  the  rule  of  exclusion.  19  Cal.  485. 

Ordsr  for  Inspection  of  Books,  etc. 

SEC.  43.  Any  court  in  which  an  action  is  pending  or  a 
judge  thereof  or  a  county  judge,  may,  upon  notice,  order 
either  party  to  give  to  the  other  within  a  specified  time  an 
inspection  and  copy  or  permission  to  take  a  copy  of  any 
book,  document  or  paper,  in  his  possession  or  under  his 
control,  containing  evidence  relating  to  the  merits  of  the 
action  or  the  defense  therein.  If  compliance  with  the  order 
be  refused,  the  court  may  exclude  the  book,  document  or 
paper,  from  being  given  in  evidence;  or,  if  wanted  as  evi 
dence  by  the  party  applying,  may  direct  the  jury  to  pre 
sume  it  to  be  such  as  he  alleges  it  to  be;  and  the  court 
may  also  punish  the  party  refusing  for  contempt.  This 
section  shall  not  be  construed  to  prevent  a  party  from  com 
pelling  another  to  produce  books,  papers  or  documents, 
when  he  is  examined  as  a  witness.  Gen.  Laws,  5380,  5551. 


EVIDENCE.  441 

Oath  to  Witnesses. 

SEC.  44.  Every  court  of  this  state,  every  judge  or  clerk 
of  any  court,  every  justice  of  the  peace  and  every  notary 
public  and  every  officer  authorized  to  take  testimony  or  to 
decide  upon  evidence  in  any  proceeding,  shall  have  power 
to  administer  oaths  or  affirmations.  Gen.  Laws,  5377,  5551. 
When  a  person  is  sworn  who  believes  in  any  other  than  the 
Christian  religion,  he  may  be  sworn  according  to  the  pe 
culiar  ceremonies  of  his  religion,  if  there  be  any  such. 
Gen.  Laws,  5378.  Any  witness  who  desires  it  may,  at  his 
option,  instead  of  taking  an  oath,  make  his  solemn  affirma 
tion  or  declaration,  by  assenting,  when  addressed,  in  the 
following  form :  ' '  You  do  solemnly  affirm,  that  the  evidence 
you  shall  give  in  this  issue  (or  matter),  pending  between 

and   ,  shall  be  the  truth,  ike  whole  truth  and 

nothing  but  the  truth."  Assent  to  this  affirmation  shall  be 
made  by  the  answer:  "I  do."  A  false  affirmation  or  declar 
ation  shall  be  deemed  perjury  equally  with  a  false  oath. 
Gen.  Laws,  5379,  5551. 

Impeachment. 

SEC.  45.  A  witness  who  is  called  to  impeach  another 
may  answer  that  he  would  not  believe  such  other  witness 
on  oath.  This  has  been  the  uniform  practice  in  this  state, 
and  no  injury  has  resulted  from  such  practice.  It  may 
sometimes  be  necessary  to  define  more  clearly  the  sense 
the  witness  entertains  of  the  standing  and  reputation  for 
truth  of  the  impeached  witness.  12  Col.  308. 

Cross-examination. 

SEC.  46.  A  witness  cannot  be  cross-examined,  except  in 
reference  to  matters  concerning  which  he  has  been  exam 
ined  in  chief.  7  Cal.  561.  A  witness,  on  cross-examination, 
can  only  be  interrogated  in  regard  to  such  matters  as  he 
testified  about  in  his  examination  in  chief,  if  objection  is 
made  on  that  ground.  25  Cal.  212.  A  party  has  no  right, 
to  cross-examine  a  witness,  except  as  to  facts  and  circum 
stances  connected  with  the  matter  stated  in  his  direct 
examination.  If  the  party  wishes  to  examine  upon  other 
matters,  he  has  the  opportunity  of  making  the  witness  his 
own,  and  calling  him  as  such  upon  the  trial.  5  Cal.  452, 
56 


442  JUSTICES*  TREATISE. 

Record  and  Certificate  o£ 

SEC.  47.  The  judgment  of  a  court  of  concurrent  jurisdic 
tion,  directly  upon  the  point  is,  as  a  plea,  a  bar  or  as  evi 
dence,  conclusive  between  the  same  parties  upon  the  same 
matter,  directly  in  question,  in  another  court.  Nothing 
can  be  assigned  for  error,  nor  can  any  averment  be  ad 
mitted  which  contradicts  a  record.  A  record  imparts  in 
itself  such  incontrollable  credit  and  verity  that  it  admits  of 
no  averment,  plea  or  proof,  to  the  contrary,  for  otherwise 
there  would  never  be  an  end  of  the  controversy.  But  to 
prevent  this  rule  from  working  injustice,  it  is  held  essential 
that  its  operation  be  mutual.  Both  the  litigants  must  be 
alike  conclude^,  or  the  proceedings  cannot  be  set  up  as 
conclusive  upon  either.  8  Col.  245,  246.  A  record  is  not 
held  conclusive  as  to  the  truth  of  any  allegations  which 
were  not  material  or  traversable;  but  as  to  things  material 
and  traversable  it  is  conclusive  and  final.  14  Cal.  229.  A 
judicial  record  of  this  state  or  of  the  United  States,  may  be 
proved  by  the  production  of  the  original  or  a  copy  thereof, 
certified  by  the  clerk  or  other  person  having  the  legal  cus 
tody  thereof,  under  the  seal  of  the  court,  to  be  a  true  copy 
of  such  record.  Gen.  Laws,  5383. 

SEC.  48.  The  records  and  judicial  proceedings  of  the 
courts  of  any  other  state  of  the  United  States  may  be  proved 
or  admitted  in  the  courts  of  this  state  by  the  attestation  of 
the  clerk  and  the  seal  of  the  court  annexed,  if  there  be  a 
seal,  together  with  a  certificate  of  the  judge,  chief  justice 
or  presiding  magistrate,  as  ihe  case  may  be,  that  the  said 
attestation  is  in  due  form.  Gen.  Laws,  5384. 

SEC.  49.  A  certificate  of  exemplification  of  a  judgment 
in  another  state,  when  attested  by  the  clerk  under  the  seal 
of 'the  court  and  when  the  presiding  judge  of  the  court  cer 
tifies  that  the  attestation  is  in  due  form  of  law,  is  sufficient 
under  the  act  of  congress  of  May  26th,  1790,  to  sustain  an 
action  upon  the  judgment  in  another  state.  1  Cal.  428. 

SEC.  50.  The  record  of  a  judgment  of  another  state,  if 
certified  in  conformity  with  the  act  of  congress,  is  admissi 
ble  in  evidence  in  this  state.  The  legislature  has  the  con 
stitutional  power  to  require  a  less  amount  of  proof  than  is 
set  forth  in  the  act  of  congress.  .  A  record,  also,  certified 


EVIDENCE.  443 

in  conformity  with  the  four  hundred  and  fiftieth  section  of 
the  practice  act  would  be  admissible  in  the  courts  of  this 
state.  7  CaL  247. 

SEC.  51.  Under  the  act  of  congress  respecting  the  au 
thentication  of  the  record  of  a  court  of  one  state  to  be  used 
in  another,  it  is  only  necessary  that  the  certificate  should 
state  the  main  facts  which  are  made  necessary  by  the  act 
when  the  offices  of  judge  and  clerk  are  both  vested  in  one 
person.  12  CaL  181. 

SEC.  52.  A  judicial  record  of  a  foreign  country  may  be 
proved  by  the  production  of  a  copy  thereof,  certified  by 
the  clerk,  with  the  seal  of  the  court  annexed,  if  there  be  a 
clerk  and  seal,  or  by  the  legal  keeper  of  the  record  with 
the  seal  of  his  office  annexed,  if  there  be  a  seal,  to  be  a 
true  copy  of  such  record,  together  with  a  certificate  of  a 
judge  of  the  court,  that  the  person  making  the  certificate 
is  the  clerk  of  the  court  or  the  legal  keeper  of  the  record, 
and  in  either  case  that  the  signature  is  genuine  and  the 
certificate  in  due  form ;  and,  also,  together  with  the  cer 
tificate  of  the  minister  or  embassador  of  the  United  States 
or  of  a  consul  of  the  United  States  in  such  foreign  country 
that  there  is  such  a  court,  specifying  generally  the  nature 
of  its  jurisdiction  and  verifying  the  signature  of  the  judge 
and  clerk  or  other  legal  keeper  of  the  record. .  A  copy  of 
the  judicial  record  of  a  foreign  country  shall  also  be  admis 
sible  in  evidence  upon  proof  : 

1st.  That  the  copy  offered  has  been  compared  by  the 
witness  with  the  original  and  is  an  exact  transcript  of  the 
whole  of  it. 

2d.  That  such  original  was  in  the  custody  of  the  clerk  of 
the  court  or  other  legal  keeper  of  the  same. 

3d.  That  the  copy  is  duly  attested  by  a  seal  which  is 
proved  to  be  the  seal  of  the  court  where  the  record  remains, 
if  it  be  the  record  of  a  court,  or  if  there  be  no  such  seal  or 
if  it  be  not  a  record  of  a  court,  by  the  signature  of  the  legal 
keeper  of  the  original. 

Printed  copies  in  volumes  of  statutes,  code  or  other  writ 
ten  law,  enacted  by  any  other  state  or  territory  or  foreign 
government,  purporting  or  proved  to  have  been  published 
by  the  authority  thereof,  or  proved  to  be  commonly  admit- 


444  JUSTICES'  TEEATISE. 

ted  as  evidence  of  the  existing  law  in  the  courts  and  judi 
cial  tribunals  of  such  state,  territory  or  government,  shall 
be  admitted  by  the  courts  and  officers  of  this  state,  on  all 
occasions,  as  presumptive  evidence  of  such  laws.  A  seal 
of  a  court  or  public  office  when  required  to  any  writ  or  .pro 
cess  or  proceeding,  or  to  authenticate  a  copy  of  any  record 
or  document,  may  be  impressed  with  wax,  wafer  or  any 
other  substance,  and  then  attached  to  the  writ,  process  or 
proceeding,  or  to  the  copy  of  the  record  or  document  or  it 
may  be  impressed  on  the  paper  alone.  Gen.  Laws,  5385- 
5388,  5551. 

SEC.  53.  Wherever  the  acts  of  public  officers  are  authen 
ticated  by  their  records,  these  records  are  evidence  in  all 
courts  of  those  acts.  13  Gal.  573. 

SEC.  54.  The  party  producing  a  writing  as  genuine  which 
has  been  altered  or  appears  to  have  been  altered,  after  its 
execution,  in  a  part  material  to  the  question  in  dispute,  and 
such  alteration  is  not  noted  on  the  writing,  shall  account 
for  the  appearance  or  alteration.  He  may  show  that  the 
alteration  was  made  by  another,  without  his  concurrence, 
or  was  made  with  the  consent  of  the  parties  affected  by  it 
or  otherwise  properly  or  innocently  made.  If  he  do  that, 
he  may  give  the  writing  in  evidence,  but  not  otherwise. 
Gen.  Laws,  5382,  5551. 

SEC.  55.  A  party  can  waive  the  production  of  the  writ 
ten  evidence  if  he  pleases,  because  it  is  a  personal  privi 
lege.  10  Gal.  166. 

SEC.  56.  It  is  error  to  admit  letters  in  evidence  without 
proving  that  they  were  written  by  the  party  intended  to  be 
charged  by  their  contents.  3  Gal.  98. 

SEC.  57.  To  admit  proof  of  the  handwriting  of  the  sub 
scribing  witness  to  an  instrument,  it  must  be  shown  that 
the  witness  is  beyond  the  jurisdiction  of  the  court  or  that 
he  could  not  be  found  after  diligent  search  for  him  had 
been  made,  that  his  absence  may  be  inferred.  3  Gal.  430. 

SEC.  58.  A  subscribing  witness  to  a  written  instrument, 
if  within  the  jurisdiction  of  the  court,  must  be  produced  or 
some  sufficient  reason  given  for  his  absence.  Within  the 
jurisdiction  of  the  court,  is  meant  within  the  state.  12  Gal. 
306. 


EVIDENCE.  445 

Secondary  Evidence. 

SEC.  59.  There  shall  be  no  evidence  of  the  contents  of  a 
writing  other  than  the  writing  itself,  except  in  the  following 
cases : 

1st.  "When  the  original  has  been  lost  or  destroyed;  in 
which  case  proof  of  the  loss  or  destruction  shall  first  be 
made. 

2d.  When  the  original  is  in  the  possession  of  the  party 
against  whom  the  evidence  is  offered,  and  he  fails  to  pro 
duce  it  after  reasonable  notice. 

3d.  When  the  original  is  a  record  or  other  document  in 
the  custody  of  a  public  officer. 

4th.  When  the  original  has  been  recorded  and  a  certified 
copy  of  the  record  is  made  evidence  by  statute. 

5th.  When  the  original  consists  of  numerous  accounts  or 
other  documents,  which  cannot  be  examined  in  court  with 
out  great  loss  of  time  and  the  evidence  sought  from  them  is 
only  the  general  result  of  the  whole.  Gen.  Laws,  5381, 
5551. 

SEC.  60.  Secondary  evidence  must  always  be  received 
with  caution,  and  then  not  until  every  means  is  shown  to  be 
exhausted  in  the  effort  to  procure  that  which  is  superior. 
5  Col.  251. 

SEC.  61.  The  reason  which  assigns  to  a  copy  of  a  paper 
its  grade  of  inferiority  to  the  original  instrument  is,  that 
the  copy  may  not  represent  the  transaction  accurately;  it 
may  be  simulated;  it  may  be  incorrect,  and  is  worthless  in 
everything  in  which  it  departs  from  the  original;  it  bears  no 
marks  of  authenticity.  The  fact  that  the  original,  which  is 
conclusive  of  its  own  contents  after  proof  of  its  execution, 
is  kept  back,  affords  suspicion  that  the  copy  is  not  what  it 
imports.  13  Cal.  573. 

SEC.  62.  If  a  party  permits  his  antagonist  to  prove  a  fact 
by  secondary  evidence,  he  cannot  afterwards  object  that  it 
was  not  proved  by  the  best.  13  Cal.  84. 

SEC.  63.  The  rule  as  to  the  predicate  for  the  admission 
of  secondary  evidence  of  a  lost  paper,  requires  that  a  bona 
fide  and  diligent  search  has  been  unsuccessfully  made  for  it 
in  the  place  where  it  was  most  likely  to  be  found;  and 


446  JUSTICES'  TREATISE. 

further,  the  party  is  expected  to  show  that  he  has  in  good 
faith  exhausted,  in  a  reasonable  degree,  all  the  sources  of 
information  and  means  of  discovery  which  the  nature  of  the 
case  would  naturally  suggest  and  which  were  accessible  to 
him.  Testimony  that  the  witness  searched  among  papers 
for  the  lost  document  and  did  not  find  it,  is  insufficient.  He 
should  swear  to  a  bona  fide  and  diligent  search.  He  may 
have  made  a  careless  and  indifferent  one  and  yet  his  state 
ment  would  be  true.  Where  a  witness  testified  that  in  the 
fire  of  1851,  the  party's  library  and  papers  were  consumed 
by  fire,  except  a  few  papers,  "which  were  preserved  in  a 
safe,"  the  court  say:  "It  is  not  pretended  that  any  search 
was  made  among  the  papers  thus  preserved  for  the  missing 
deed,  and  yet  is  apparent  that  the  safe  was  the  most  likely 
place  where  a  paper  so  valuable  would  be  kept;  and  further, 
there  is  no  statement  that  it  was  not  kept  in  the  safe."  6 
Cal.  461,  462. 

SEC.  64.  Books  of  Account. — This  species  of  evidence  is 
more  frequently  used  in  justices'  courts  than  in  any  other, 
and  it  was  in  that  court  that  the  case  arose,  the  rulings  in 
which  control  in  regard  to  this  kind  of  testimony.  Thayer 
sued  Vosburgh  before  a  justice  for  butcher's  meat  furnished 
to  Yosburgh  and  his  family.  Thayer  proved :  1st.  That  he 
had  been  in  the  daily  practice  of  supplying  Vosburgh  and 
his  family  with  meat  during  the  period  for  which  he  claimed 
payment.  2d.  He  proved  by  some  of  those  who  had  dealt 
with  him  that  he  kept  just  and  honest  accounts.  3d.  That 
he  had  no  clerk.  He  then  offered  his  books  of  account  in 
evidence.  They  were  objected  to  but  admitted  by  the  jus 
tice,  who  gave  judgment  for  Thayer.  Vosburgh  removed 
the  cause  by  certiorari  to  the  supreme  court  where  the  judg 
ment  was  affirmed  and  the  following  restrictions  laid  down, 
within  which  all  account  books,  without  regard  to  the  par 
ticular  employment  of  the  party  keeping  them,  are  made 
evidence  in  his  favor : 

1st.  The  charges  to  be  proved  must  be  such  as  are  matter 
,  of  book  account.     A  book,  therefore,  would  not  be  evidence 
of  money  lent,  had  and  received,  or  paid,  laid  out  and  ex 
pended,  for  the  use  of  the  opposite  party. 

2d.  They  are  not  evidence  of  a  single  charge,  because 


EVIDENCE.  447 

there  exists  in  such  case  no  regular  dealing  between  the 
parties. 

3d.  They  are  not  to  be  admitted  where  there  are  several 
charges,  unless  a  foundation  is  laid  for  their  admission  by 
proving — 

4th.  That  the  party  had  no  clerk  [not  so  in  this  state] ; 
that  some  of  the  articles  charged  had  been  delivered;  that 
the  books  produced  are  the  account-books  of  the  party. 
He  must  prove  by  those  who  have  dealt  and  settled  with 
him,  that  he  keeps  fair  and  honest  accounts.  Under  these 
restrictions,  they  are  evidence  to  be  left  to  the  jury.  12 
Johns.  461. 

SEC.  65.  By  the  above  decision,  account  books  are  made 
evidence  for  the  consideration  of  a  jury,  and,  which  is  the 
same  thing,  of  a  justice  where  no  jury  is  called  for  by 
either  party.  But  the  weight  of  such  evidence  in  the  scale 
of  justice  is  not  and  cannot  be  assigned,  and  must,  therefore, 
depend  upon  various  circumstances  calculated  to  increase 
or  diminish  it  in  the  view  of  enlightened  experience.  The 
following  remarks  of  Ch.  J.  Pennington  should  be  carefully 
studied  when  he  says :  ' '  The  manner  of  keeping  books  of 
account  in  the  country,  renders  them,  in  many  instances, 
very  unsatisfactory  evidence,  and  makes  it  necessary  to 
examine  them  with  caution.  They  are  admitted  from  the 
necessity  of  the  thing  in  derogation  of .  an  ancient  precept 
of  the  common  law,  that  a  party  ought  not  to  be  permitted 
to  furnish  evidence  for  himself.  The  constant,  continued 
and  repeated,  dealings  and  daily  intercourse  of  a  commercial 
or  pecuniary  nature,  which  one  citizen  haths  with  another, 
especially  as  the  country  approximates  to  a  manufacturing 
and  commercial  state,  render  it  next  to  impossible  to 
call  witnesses  to  every  transaction  of  the  kind,  and  very 
laborious  and  inconvenient  to  reduce  to  writing,  under  the 
hand  of  the  party,  every  contract  which  our  wants  and 
interest  are  hourly  leading  us  to  engage  in.  This  hath 
given  rise  to  the  practice  of  memorandums  in  the  form  of 
books ;  if  these  memorandums  are  to  have  no  effect,  it 
would  be  a  useless  waste  of  time  to  keep  them.  These 
memorandums  or  books  of  account  are,  by  the  general 
assent  of  the  community,  received  as  evidence  of  the  trans- 


448  JUSTICES'  TREATISE. 

action  written  in  them,  and  have  at  length  received  the 
sanction  of  our  highest  courts  of  justice.  Being,  however, 
the  a-cts  of  the  party  producing  them,  and  made  by  himself 
for  the  purposes  of  evidence,  they  are  so  far  from  being 
conclusive  evidence  that  they  are  liable  to  the  strictest 
scrutiny  and  are,  at  most,  presumptive  evidence ;  and  as 
such,  like  all  other  presumptive  evidence,  liable  to  be  re 
butted  or  counteracted  by  every  kind  of  evidence  that  can 
be  raised  against  them.  There  is  one  essential  requisite  to 
the  introduction  of  these  books,  which  is,  that  the  party 
offering  them  in  evidence  must  first  prove  that  the  book  he 
offers  is  his  book  of  account  in  which  he  usually  enters  and 
keeps  his  general  accounts  with  those  persons  with  whom 
he  deals.  For  if  a  man  were  to  keep  one  book  for  one 
man's  account,  and  another  book  for  another,  these  books 
would  not  be  such  account  books  as  he  would  be  entitled 
to  give  in  evidence;  besides,  it  is  essential  that  the  books 
offered  are  made  to  appear  to  be  the  actual  books  of  the  per 
son  offering  them,  and  not  the  books  of  any  other  person; 
also,  that  it  is  not  a  book  made  up  for  the  occasion,  but  a 
book  in  which  the  person  offering  it  keeps  the  account  of 
his  ordinary  dealings,  and  a  book  of  original  entry.  Books 
of  account  derive  much  of  their  credit  from  the  manner  in 
which  they  are,  or  ought  to  be  kept;  that  is,  as  a  kind  of 
diary  or  daily  journal  of  the  transactions  of  the  persons 
who  keep  them,  who  enter  every  sale  or  other  act  as  it 
occurs.  Books  kept  in  this  way  are  entitled  to  the  more 
credit,  from  two  causes  :  first,  that  a  memorandum  made  of 
a  transaction  at  the  time  it  took  place  is  more  likely  to  be 
correct  than  if  it  is  entered  from  memory  some  time  after 
wards;  second,  men  are  more  likely  to  be  tempted  to  make 
false  entries  in  their  books  a  long  time  after  the  transac 
tion  hath  happened,  and  frequently  after  a  difference  hath 
taken  place,  than  at  the  time  and  place  of  the  original 
transaction.  Some  persons  keep  their  books  in  this  way : 
they  have  but  one  book,  and  that  in  the  nature  of  a  ledger, 
wherein  they  upon  one  page  keep  one  man's  account,  and 
on  another  page  another  man's  account,  and  keep  no  day 
book  at  all.  Books  kept  in  this  way  open  the  door  for 
the  grossest  frauds  and  injustice,  and  the  most  scandalous 


EVIDENCE.  449 

iniquity  is  daily  practiced  under  it.  I  am  clearly  of  opinion 
myself  that  books  kept  in  this  way  ought  never  to  be  suf 
fered  to  appear  in  a  court  of  justice.  But  the  law  is  other 
wise,  and  they  must  be  admitted  the  same  as  other  books 
when  proved  to  be  the  ordinary  books  of  account  of  the 
persons  offering  them  in  which  he  makes  his  original 
entries.  But  they  ought  to  be  considered  the  most  suspi 
cious  testimony  that  can  be  offered,  little  better  than  the 
declaration  of  the  party  in  his  own  favor.  Entries  are 
frequently  made  after  the  controversy  commences,  and 
accounts  opened  years  after  the  transactions  have  taken 
place  [which]  gave  rise  to  them.  And  I  would  here  ob 
serve,  that  because  the  law  permits  books  of  account  to  be 
given  in  evidence,  that  is,  shown  to  a  court  and  jury,  it  by 
no  means  gives  validity  or  authority  to  the  contents  of 
them ;  but  the  justice  or  the  jury,  in  the  case  the  trial  is  by 
jury,  must  draw  their  own  conclusions.  The  character  of 
the  man  who  keeps  the  books,  the  fairness  or  unfairness  of 
the  books  from  their  appearance,  the  time  and  manner  of 
making  the  entries,  whether  the  items  are  in  the  ordinary 
course  of  a  man's  trade  or  business  or  of  an  extraneous  and 
suspicious  nature,  whether  any  and  what  other  evidence  is 
given  to  corroborate  the  charges.  All  these  are  proper 
subjects  for  the  due  consideration  of  the  justice  or  jury." 
12  Johns.  461. 

SEC.  66.  After  the  instructions  contained  in  the  abstract 
given  from  the  opinion  of  the  court  in  the  case  of  TJiayer 
vs.  Vosburgh,  it  will  be  sufficient  to  give  the  rule  adopted 
in  this  state,  so  far  as  it  has  been  established,  which  will 
safely  direct  justices  of  the  peace  in  the  admission  of  this 
kind  of  evidence. 

SEC.  67.  This  kind  of  evidence  is  not  restricted  in  this 
state  to  any  particular  sort  of  business  or  occupation.  It  is 
common  to  the  merchant,  mechanic  and  farmer.  It  seems 
to  be  no  objection  that  part  of  the  entries  are  made  by  the 
party  and  part  by  his  clerk.  In  the  case  of  Vosburgh  vs. 
Thayer,  it  is  held  that  he  must  have  no  clerk,  but  in  this 
state  the  rule  is  not  restricted  to  the  party  himself.  If  his 
books  of  account  have  been  kept  by  a  clerk,  they  may  be 
proved  by  the  clerk.  Whether  the  book  be  kept  by  the  party 
57 


450  JUSTICES'  TREATISE. 

himself  or  his  clerk  to  constitute  it  admissible  evidence  of 
the  account,  it  must  contain  the  following  qualifications : 

1st.  The  charges  must  be  confined  to  goods  and  chattels 
sold  and  delivered,  services  performed  and  materials  found 
and  provided  and  the  use  of  such  property  hired  and  re 
turned.  Work  and  labor  must  be  done  before  it  is  charged. 
Money  and  choses  in  action,  such  as  bonds  and  notes,  are 
not  the  subject  of  book  account. 

2d.  The  entries  must  be  made  at  or  near  the  time  of  the 
transaction.  They  should  be  memoranda  of  transactions  as 
they  occur.  The  proximity  of  time  must  depend  on  the 
course  of  the  business.  The  party  may  first  enter  his  ac 
counts  on  a  slate  and  afterwards  transcribe  them  in  his 
book,  if  such  be  his  ordinary  course  in  making  his  entries. 
Such  accounts  should,  in  general,  be  entered  in  the  book 
daily. 

3d.  The  entry  must  be  in  the  book  of  the  party,  kept  by 
him  for  the  purpose  of  his  daily  accounts,  generally,  with 
all  those  persons  who  may  have  dealings  with  him.  They 
must  be  made  in  the  prevalent  manner  of  his  keeping  the 
book  and  in  a  regular  course  with  other  charges.  If  they 
stand  insulated,  as  on  the  front  page,  not  falling  into  regu 
lar  order  with  other  charges,  or  be  on  a  separate  sheet,  or 
on  a  leaf  torn  out  of  a  book  or  on  one  of  the  last  pages,  sep 
arate  from  other  charges  by  intervening  blank  leaves,  they 
are  not  admissible. 

4th.  The  book  must  contain  the  original  entries  made  by 
l^ie  party  himself  and  not  by  another,  unless  it  be  by  a  reg 
ular  clerk  employed  by  the  party  and  whose  business  it  is 
to  make  them. 

5th.  They  may  be  kept  in  the  form  of  an  ordinary  jour 
nal  or  day-book,  or  ledger-wise,  that  is,  when  the  account 
of  each  man  dealing  with  the  party  is  kept  by  itself.  But 
it  must  appear  they  were  intended  as  an  account  against  the 
party  sought  to  be  charged  by  them,  not  as  a  mere  memo 
randum  between  the  party  and  others.  Erasures  and  inter 
lineations  go  to  the  credit  of  the  book.  They  may,  how 
ever,  be  explained.  But  if  they  be  gross,  suspicious  and 
unexplained,  or  if  any  other  fraudulent  appearances  pre 
sent  themselves,  the  credit  of  the  book  will  be  thereby 


EVIDENCE.  451 

destroyed.  If  the  day-book  be  posted  the  ledger  must  be 
produced,  as  that  may  show  payments. 

6th.  The  charges  must  be  specific  and  not  in  gross  or 
aggregate.  Thus:  A  bricklayer's  charge  for  "one  hundred 
and  ninety  days'  work,"  was  rejected;  also,  a  physician's 
charge  for  "medicine  and  attendance,  thirteen  dollars." 
The  specific  thing  charged  for  must  be  entered  and  the 
price  carried  out. 

SEC.  68.  Whether  the  original  entries  be  relied  on  as 
those  of  the  party  or  be  proved  by  a  clerk  who  made  them 
but  who  is  unable  to  speak,  independently  of  the  book,  it 
must  be  produced;  a  copy  is  not  admissible,  at  least  not 
until  the  absence  of  the  original  be  accounted  for.  But 
books  are  in  neither  case  evidence  of  a  higher  but  rather  of 
an  inferior  degree  than  common-law  proof.  If  the  latter  be 
attainable,  the  party  may  of  course  resort  to  it  and  it  will 
be  no  objection  that  his  book  is  not  adduced.  But  the 
non-production  of  it,  if  the  book  be  called  for  by  his  adver 
sary,  would  be  a  circumstance  against  him.  .  If  the  entries 
were  made  by  a  clerk  and  he  be  dead,  his  handwriting  may 
be  proved ;  then  on  showing  that  he  was  clerk  the  entries 
may  be  read  as  evidence  at  common  law. 

SEC.  69.  Books  are  evidence  of  items,  of  sale  and  deliv 
ery  of  goods,  services  done,  materials  found  and  retainer 
to  do  the  service,  together  with  the  prices  carried  out,  re 
spectively.  The  book  must  be  taken  with  its  charges  and 
credits  together. 

SEC.  70.  A  private  account  book  of  the  plaintiff,  kept 
by  himself  and  containing  only  an  account  of  money  paid, 
is  not  evidence  to  charge  the  defendant.  2  Cal.  422. 

SEC.  71.  Though  the  account  book  of  a  tradesman,  as  a 
general  rule,  is  not  admissible  to  prove  a  charge  for  money 
loaned,  yet  where  it  was  shown  that  plaintiff  had  procured 
some  articles  for  defendant,  which  he  paid  for,  and  charged 
as  so  much  money  loaned,  the  book  is  admissible.  Admit 
ting  that  a  trader's  book  is  not  admissible  to  prove  a  single 
item,  yet  where  the  evidence  shows  that  defendant  bought 
goods  at  various  times,  for  which  only  one  charge  was  en 
tered  after  the  order  was  filled,  the  account  book  would 
seem  to  be  admissible  in  evidence.  7  Cal.  186. 


452  JUSTICES'  TREATISE. 

Respecting  Mining  Claims. 

SEC.  72.  In  actions  respecting  "mining  claims,"  proof 
shall  be  admitted  of  the  customs,  usages  or  regulations, 
established  and  in  force  at  the  bar  or  diggings  embracing 
such  claim  ;  and  such  customs,  usages  or  regulations,  when 
not  in  conflict  with  the  constitution  and  laws  of  this  state, 
shall  govern  the  decision  of  the  action.  Gen.  Laws,  5552. 

SEC.  73.  In  suit  for  mining  claims,  the  court  permitted 
defendants  to  introduce  in  evidence  the  mining  rules  of  the 
district,  though  adopted  after  the  rights  of  plaintiffs  had 
attached:  Held,  that  admitting  plaintiffs'  rights  could  not 
be  affected  by  such  rules,  still,  as  defendants  claim  under 
them,  they  wTere  competent  evidence  to  determine  the  nature 
and  extent  of  defendants'  claim — the  effect  of  such  rules 
upon  pre-existing  rights  being  sufficiently  guarded  by  in 
structions  of  the  court.  Roach  vs.  Gray,  16  Cal.  384. 

SEC.  74.  "Where  the  location  of  a  mining  claim  is  made 
both  by  posting  notices  and  by  designating  fixed  objects 
such  as  trees,  shafts  and  ditches,  on  or  near  its  exterior 
boundaries,  in  an  action  between  two  companies  involving 
the  title  to  a  portion  of  the  ground,  witnesses  are  not  con 
fined  in  their  testimony  to  a  statement  of  the  contents  of 
the  notices,  but  may  also  state  whether  the  location  made 
included  the  ground  in  dispute.  The  same  rules  of  law 
relating  to  estoppel  in  pals  apply  to  mining  ground  as  any 
any  other  real  estate  claimed  under  a  similar  kind  of  title. 
23  Cal.  11. 

Affidavits. 

SEC.  75.  An  affidavit,  to  be  used  before  any  court,  judge 
or  officer,  of  this  state,  may  be  taken  before  any  judge  or 
clerk  of  any  court,  or  any  justice  of  the  peace  or  notary 
public  in  this  state.  An  affidavit,  taken  in  another  state  of 
the  United  States,  to  be  used  in  this  state,  shall  be  taken 
before  a  commissioner  appointed  by  the  governor  of  this 
state  to  take  affidavits  and  depositions  in  such  other  state, 
or  before  any  judge  of  a  court  of  record  having  a  seal.  An 
affidavit,  taken  in  a  foreign  country,  to  be  used  in  this  state, 
shall  be  taken  before  an  embassador,  minister  or  consul,  of 
the  United  States,  or  before  any  judge  of  a  court  of  record 


EVIDENCE.  453 

having  a  seal  in  such  foreign  country.  When  an  affidavit 
is  taken  before  a  judge  of  a  court  in  another  state  or  in  a 
foreign  country,  the  genuineness  of  the  signature  of  the 
judge,  the  existence  of  the  court,  and  the  fact  that  such 
judge  is  a  member  thereof,  shall  be  certified  by  the  clerk  of 
the  court  under  the  seal  thereof.  Gen.  Laws,  5358,  5361, 
5551. 

SEC.  76.  An  affidavit  need  not  be  signed  by  the  party 
making  it.  15  Cal.  53.  Courts  take  judicial  notice  of  the 
official  character  of  justices  of  the  peace  in  their  own 
states,  and  an  affidavit  in  which  the  official  character  of  the 
justice  before  whom  it  is  taken  appears,  is  good.  15  Cal. 
57,  58. 

SEC.  77.  The  statute  giving  authority  "to  recorders  to 
ike  affidavits  to  be  used  in  any  court  of  justice  in  this 
state,"  comprehends  the  power  to  take  and  certify  the  jurat 

an  answer,  which  is,  in  form  and  substance,  an  affidavit. 
L3  Cal.  648. 

DEPOSITIONS  TAKEN  IN  THIS  STATE. 

SEC.  78.  The  testimony  of  a  witness  in  this  state  may  be 
iken  by  deposition  in  an  action  at  any  time,  after  the  serv 
ice  of  the  summons  or  the  appearance  of  the  defendant ; 
md  in  a  special  proceeding,  after  a  question  of  fact  has 
risen  therein,  in  the  following  cases : 

1st.  When  the  witness,  is  a  party  to  the  action  or  pro- 
ceding,  or  a  person  for  whose  immediate  benefit  the  action 
or  proceeding  is  prosecuted  or  defended. 

2d.  When  the  witness  resides  out  of  the  county  in  which 
testimony  is  to  be  used. 

3d.  When  the  witness  is  about  to  leave  the  country  where 

•f, 

the  action  is  to  be  tried,  and  will  probably  continue  absent 
when  the  testimony  is  required. 

4th.  When  the  witness,  otherwise  liable  to  attend  the 
trial,  is  nevertheless  too  infirm  to  attend.  Gen.  Laics, 
5362,  5551. 

SEC.  79.  Either  party  may  have  the  deposition  taken  of 
a  witness  in  this  state  before  any  judge  or  clerk  or  any  jus 
tice  of  the  peace  or  notary  public  in  this  state,  on  serving 
on  the  adverse  party  previous  notice  of  the  time  and  place 


454  JUSTICES'  TREATISE. 

of  examination,  together  with  a  copy  of  an  affidavit  showing 
that  the  case  is  one  mentioned  in  the  previous  section.  At 
any  time  during  the  forty  days  immediately  after  the  service 
of  summons  by  publication  has  been  completed,  and  at  any 
time  thereafter,  when  the  defendant  has  not  appeared,  the 
notice  required  by  this  section  may  be  served  on  the  clerk 
of  the  court  where  the  action  is  pending.  Such  notice  shall 
be  at  least  five  days  and,  in  addition,  one  day  for  every 
twenty-five  miles  of  the  distance  of  the  place  of  examina 
tion  from  the  residence  of  the  person  to  whom  the  notice 
is  given,  unless,  for  a  cause  shown,  a  judge  by  order  pre 
scribe  a  shorter  time.  When  a  shorter  time  is  prescribed, 
a  copy  of  the  order  shall  be  served  with  the  notice.  Gen. 
Laws,  5363,  5551. 

SEC.  80.  Either  party  may  attend  such  examination  and 
put  such  questions,  direct  and  cross,  as  may  be  proper. 
The  deposition  when  completed  shall  be  carefully  read  to 
the  witness  and  corrected  by  him  in  any  particular,  if  de 
sired  ;  it  shall  then  be  subscribed  by  the  witness,  certified 
by  the  judge  or  officer  taking  the  deposition,  inclosed  in  an 
envelop  or  wrapper,  sealed  and  directed  to  the  clerk  of  the 
court  in  which  the  action  is  pending,  or  to  such  person  as 
the  parties  in  writing  may  agree  upon,  and  either  delivered 
by  the  judge  or  officer  to  the  clerk  or  such  person,  or  trans 
mitted  through  the  mail  or  by  some  safe  private  opportu 
nity,  and  thereupon  such  depositipn  may  be  used  by  either 
party  upon  the  trial  or  other  proceeding  against  any  party 
giving  or  receiving  the  notice,  subject  to  all  legal  excep 
tions  ;  but  if  the  parties  attend  at  the  examination,  no  ob 
jection  to  the  form  of  an  interrogatory  shall  be  made  at  the 
trial,  unless  the  same  was  stated  at  the  time  of  the  exami 
nation.  If  the  deposition  be  taken  by  the  reason  of  the 
absence  or  intended  absence  from  the  county  of  the  wit 
ness,  or  because  he  is  too  infirm  to  attend,  proof  by  affida 
vit  or  oral  testimony  shall  be  made  at  the  trial  that  the 
witness  continues  absent  or  infirm,  to  the  best  of  the  depo 
nent's  knowledge  or  belief.  The  deposition  thus  taken  may 
be  also  read  in  case  of  the  death  of  the  Avituess.  Gen.  Laics, 
5364,  5551. 

SEC.  81.     When  a  deposition  has  been  once  taken,  it  may 


EVIDENCE.  455 

be  read  in  any  stage  of  the  same  action  or  proceeding  by 
either  party,  and  shall  then  be  deemed  the  evidence  of  the 
party  reading  it.  Gen.  Laws,  5365,  5551. 

SEC.  82.  ,  Justices  may  issue  commissions  to  take  the 
depositions  of  witnesses  out  of  this  state  and  settle  inter 
rogatories  to  be  annexed  thereto,  and  direct  the  manner  in 
which  the  commissions  shall  be  returned.  Gen.  Laws,  5551. 

DEPOSITIONS  TAKEN   OUT   OF   THIS  STATE. 

SEC.  83.  The  testimony  of  a  witness  out  of  the  state  may 
be  taken  by  deposition  in  an  action  at  any  time  after  the 
service  of  the  summons  or  the  appearance  of  the  defendant, 
and  in  a  special  proceeding  at  any  time  after  a  question  of 
fact  has  arisen  therein.  Gen.  Laws,  5366,  5551. 

SEC.  84.  The  deposition  of  a  witness  out  of  this  state 
shall  be  taken  upon  commission  issued  from  the  court, 
under  the  seal  of  the  court,  upon  an  order  of  the  judge  or 
court  or  county  judge,  on  the  application  of  either  party, 
upon  five  days'  previous  notice  to  the  other.  It  shall  be 
issued  to  a  person  agreed  upon  by  the  parties,  or  if  they  do 
not  agree,  to  any  judge  or  justice  of  the  peace  selected  by 
the  officer  granting  the  commission,  or  to  a  commissioner 
appointed  by  the  governor  of  this  state  to  take  affidavits 
and  depositions  in  other  states.  Gen.  Laws,  5367,  5551. 

SEC.  85.  Such  proper  interrogatories,  direct  and  cross, 
as  the  respective  parties  may  prepare,  to  be  settled  if  the 
parties  disagree  as  to  their  form,  by  the  judge  or  officer 
granting  the  order  for  the  commission,  at  a  day  fixed  in  the 
order,  may  be  annexed  to  the  commission,  or  when  the  par 
ties  agree  to  that  mode  the  examination  may  be  without 
written  interrogatories.  Gen.  Laws,  5368,  5551. 

SEC.  86.  The  commission  shall  authorize  the  commis 
sioner  to  administer  an  oath  to  the  witness  and  to  take  his 
deposition  in  answer  to  the  interrogatories  or  when  the 
examination  is  to  be  without  interrogatories  in  respect  to 
the  question  in  dispute,  and  to  certify  the  deposition  to  the 
court  in  a  sealed  envelop,  directed  to  the  clerk  or  other 
person  designated  or  agreed  upon  and  forwarded  to  him  by 
mail  or  other  usual  channel  of  conveyance.  Gen.  Laws, 
5369,  5551. 


456  JUSTICES'  TREATISE. 

SEC.  87.  A  trial  or  other  proceeding  shall  not  be  post 
poned  by  reason  of  a  commission  not  returned,  except  upon 
evidence  satisfactory  to  the  court  that  the  testimony  of  the 
witness  is  necessary  and  that  proper  diligence  has  been 
used  to  obtain  it.  Gen.  Laws,  5370,  5551. 

SEC.  88.  An  order  to  take  testimony,  by  deposition, 
should  specify  the  notice  to  be  given  to  the  adverse  party. 
A  deposition  taken  upon  an  order  without  such  notice, 
where  the  opposite  party  has  not  had  reasonable  notice, 
ought  not  to  be  read  in  evidence.  5  Cal,  444. 

SEC.  89.  It  being  objected  by  plaintiff  to  a  deposition: 
1st,  that  the  copy  of  the  order  of  the  judge  fixing  the  time 
for  taking  it  did  not  mention  the  notice -to  be  given  the 
adverse  party;  2d,  that  no  correct  copy  of  said  order  was1 
served;  3d,  that  no  sufficient  notice  to  take  the  deposition 
was  ever  given,  the  objection  was  overruled,  "because  the 
original  order  of  the  judge,  made  on  affidavit,  fixed  the 
time  of  notice  at  three  days,  and  because  plaintiff's  counsel 
acknowledged  service  in  writing  of  a  copy  thereof  March 
8th,  1859,  more  than  three  days  before  the  taking  of  the 
deposition":  Held,  that  there  was  no  error.  The  objection 
assigned  was  a  matter  to  be  considered  by  the  court,  and  its 
discretion  seems  to  have  been  properly  exercised.  Rea 
sonable  notice  should  be  given  to  the  party  of  the  time  and 
place  of  taking  testimony;  but  what  is  reasonable  notice 
depends  upon  the  particular  circumstances.  17  Cal,  43. 

SEC.  90.  Proof  of  notice  to  take  a  deposition  where  the 
written  notice  was  defective,  was  held  good  when  made  by 
parol  and  conforms  substantially  to  the  statute.  A  slight 
error  in  the  title  of  a  cause,  where  there  is  no  other  suit 
pending  between  the  parties,  will  not  invalidate  the  notice. 
3  Cal.  97. 

SEC.  91.  A  certificate  to  a  deposition  must  state  that  the 
deposition  was  read  to  the  witness  before  signing;  it  should 
set  out  an  actual  compliance  with  all  the  requirements  of 
the  statute.  6  Cal.  561. 


EXECUTION.  457 

I 

CHAPTER     XLVIII. 
EXECUTION. 


WHEN  IT  SHALL  ISSUE 1-2 

WHAT  TO  CONTAIN „ 3 

To  WHOM  DIRECTED 4 

IN  WHAT  MANNER  SERVED 5-9 

PROPERTY  EXEMPT  FROM 10-32 

How  LEVY  MADE 33-41 

SALE  UNDER — NOTICE  OF...    . .  42-48 


SECS. 

CERT.  .FICATE  or  SALE 49-51 

PURCHASER  REFUSING  TO  PAY  . .  52-53 

REDEMPTION 54-59 

PURCHASER  EVICTED   MAY  RE 
COVER  PRICE  OF 60 

DEED  . .  .  61-62 


When  it  shall  Issue. 

SECTION  1.  Execution  may  issue  at  any  time  within  five 
years  for  the  enforcement  of  a  judgment  rendered  in^i  jus 
tice's  court.  Pr.  Act,  600. 

SEC.  2.  It  must  issue  within  five  years  after  a  judgment 
is  obtained.  After  that  time  there  is  no  judgment.  8  CaL 
512.  The  clerk  of  the  county  cannot  issue  an  execution  on 
a  judgment  rendered  by  a  justice  of  the  peace  after  five 
years  shall  have  elapsed  from  the  date  of  its  rendition.  •  26 

CaL  156. 

What  to  Contain. 

SEC.  3.  The  execution  shall  be  directed  to  the  sheriff  or 
constable  and  be  subscribed  by  the  justice  by  whom  it  was 
rendered  or  by  his  successor,  and  shall  bear  date  the  date 
of  its  delivery  to  the  officer.  It  shall  intelligibly  refer  to 
the  judgment,  by  stating  the  names  of  the  parties  and  the 
name  of  the  justice  before  whom,  and  of  the  county  and 
the  township  or  city  where  and  the  time  when  it  was  ren 
dered  ;  the  amount  of  judgment,  if  it  be  for  money,  and  if 
less  than  the  whole  is  due,  the  true  amount  due  thereon. 

Pr.  Act,  601. 

To  Whom  Directed. 

SEC.  4.  The  officer  to  whom  the  execution  is  directed 
shall  proceed  to  execute  it  in  the  same  manner  as  the  sheriff 
is  required  to  proceed  upon  executions,  and  either  before 
or  after  the  return  of  the  execution,  if  the  same  remain 
unsatisfied,  the  judgment  debtor  shall  be  entitled  to  an 
order  from  the  justice,  requiring  the  judgment  debtor  to 
58 


458  JUSTICES'  TREATISE. 

i 

attend,  at  a  time  to  be  designated  in  the  order,  and  answer 

concerning  his  property  before  such  justice,  and  his  attend 
ance  may  be  enforced,  and  he  may  be  examined  on  oath 
concerning  his  property,  and  any  person  alleged  to  have 
property  in  his  hands,  or  money,  effects  or  credits,  of  the 
judgment  debtor,  may  also  be  required  to  attend  and  be 
examined,  and  the  justice  may  order  property  in  the  hands 
of  the  judgment  debtor  or  any  other  person,  not  exempt 
from  execution,  belonging  to  such  debtor  to  be  applied 
toward  the  satisfaction  of  the  judgment,  and  the  justice 
may  enforce  such  order  by  imprisonment  until  complied 
with;  but  no  judgment  debtor  or  other  person  shall  be 
required  to  attend  before  the  justice  out  of  the  county  in 
which  he  resides.  Pr.  Act,  602. 

In  -what  manner  Served. 

SEC.  5.  By  virtue  of  the  two  last  sections  a  constable 
may  serve  an  execution  out  of  his  township.  17  Cat.  394. 

SEC.  6.  The  property  liable  to  be  seized  under  execution 
is  the  same  as  that  which  may  be  attached,  viz  :  goods, 
chattels,  moneys  and  other  property,  both  real  and  person 
al,  or  any  interest  therein  belonging  to  the  judgment  debtor 
not  exempt  by  law,  and  whatever  property  may  be  held  by 
attachment  [see  ATTACHMENT]  is  liable  under  execution. 
Shares  and  interest  in  any  corporation  or  company,  and 
debts  and  credits  on  all  other  property,  both  real  and  per 
sonal,  and  any  interest  in  either  real  or  personal  property, 
and  all  other  property  not  capable  of  manual  delivery,  may 
be  attached  on  execution  in  like  manner  as  upon  writs  of 
attachment.  Gold  dust  shall  be  returned  by  the  officer  as 
so  much  money  collected,  at  its  current  value,  without  ex 
posing  the  same  to  sale.  Until  a  levy,  property  shall  not 
be  affected  by  the  execution.  Pr.  Act,  217. 

SEC.  7.  Property  in  anything  is  the  right  which  a  man 
has  to  its  possession  or  enjoyment;  it  is  the  interest  which 
a  man  has  in  lands  and  chattels  to  the  exclusion  of  others. 
9  Cal.  142.  Property  in  lands  is  not  confined  to  title  in  fee, 
but  includes  any  usufructuary  interest  (State  of  California 
vs.  Moore,  12  Cal.  56)  and  embraces  all  titles,  legal  or  equi 
table,  perfect  or  imperfect.  Leese  vs.  Clark,  20  Cal.  388. 


EXECUTION.  459 

SEC.  8.  If  the  property  levied  on  be  claimed  by  a  third 
person  as  his  property,  the  same  proceedings  may  be  had 
by  the  officer  as  in  attachments  when  property  attached  is 
so  claimed.  See  ATTACHMENTS. 

SEC.  9.  Where  property  is  levied  on  by  a  constable  or 
sheriff,  by  virtue  of  an  attachment  or  execution,  as  the 
property  of  the  defendant  in  the  suit,  and  is  claimed  by  a 
third  party,  and  a  jury  is  called  to  try  the  right  of  property 
under  the  claim,  and  the  verdict  of  the  jury  is  against  the 
claimant,  this  verdict  is  no  protection  to  the  officer  in  a  suit 
brought  against  him  by  the  defendant,  nor  is  it  admissible 
in  evidence  as  a  defense.  Sddon  vs.  Loom.is,  28  Cal.  122. 

Property   Exempt. 

SEC.  10.  The  following  property  shall  be  exempt  from 
execution,  except  as  herein  otherwise  specially  provided  : 

1st.  Chairs,  tables,  desks  and  books,  to  the  value  of  one 
hundred  dollars,  belonging  to  the  judgment  debtor. 

2d.  Necessary  household,  table  and  kitchen,  furniture, 
belonging  to  the  judgment  debtor,  including  stoves,  stove 
pipe  and  stove  furniture,  wearing  apparel,  beds,  bedding 
and  bedsteads,  and  provisions  actually  provided  for  indi 
vidual  or  family  use,  sufficient  for  one  month. 

3d.  The  farming  utensils  or  implements  of  husbandry  of 
the  judgment  debtor;  also,  two  oxen  or  two  horses,  or  two 
mules  and  their  harness,  four  cows  with  their  sucking 
calves,  one  cart  or  wagon,  and  food  for  such  oxen,  horses, 
cows  or  mules,  for  one  month ;  also,  all  seed,  grain  or  vege 
tables,  actually  provided,  reserved  or  on  hand,  for  the  pur 
pose  of  planting  or  sowing,  at  any  time  within  the  ensuing 
six  months,  not  exceeding  in  value  the  sum  of  two  hundred 
dollars. 

4th.  Tools  or  implements  of  a  mechanic  or  artisan,  neces 
sary  to  carry  on  his  trade ;  the  instruments  and  chest  of  a 
surgeon,  physician,  surveyor  and  dentist,  necessary  to  the 
exercise  of  their  profession,  with  their  scientific  and  profes 
sional  libraries  ;  the  law  libraries  of  attorneys  and  counsel 
ors,  and  the  libraries  of  ministers  of  the  gospel. 

5th.  The  cabin  or  dwelling  of  a  miner,  not  exceeding  in 
value  the  sum  of  five  hundred  dollars ;  also,  his  sluices, 


460  JUSTICES'  TREATISE. 

pipes,  hose,  windlass,  derrick,  cars,  pumps,  tools,  imple 
ments  and  appliances,  necessary  for  carrying  on  any  kind 
of  mining  operations  not  exceeding  in  value  the  aggregate- 
sum  of  five  hundred  dollars ;  and  two  horses,  mules  or  oxen, 
with  their  harness  and  food  for  such  horses,  mules  or  oxen, 
for  one  month,  when  necessary  to  be  used  for  any  whim, 
windlass,  derrick,  car,  pump  or  hoisting  gear. 

6th.  Two  oxen,  two  horses  or  two  mules  and  their  har 
ness,  and  one  cart  or  wagon,  one  dray,  one  truck,  one 
coupe,  one  hack  or  carriage,  for  one  or  two  horses,  by  the 
use  of  which  a  cartman,  drayman,  truckman,  huckster,  ped 
dler,  hackman,  teamster  or  other  laborer,  habitually  earns 
his  living,  and  one  horse  with  vehicle  and  harness  or  other 
equipments,  used  by  a  physician,  surgeon  or  minister  of 
the  gospel,  in  making  his  professional  visits,  with  food  for 
such  oxen,  horses  or  mules,  for  one  month. 

7th.  All  fire  engines,  hooks  and  ladders,  with  the  carts, 
trucks  and  carriages,  hose,  buckets,  implements  and  ap 
paratus  thereto  appertaining,  and  all  furniture  and  uni 
forms  of  any  fire  company  or  department  organized  under 
any  law  of  this  state. 

8th.  All  arms,  uniforms  and  accouterments  required  by 
law  to  be  kept  by  any  person. 

9th.  All  court-houses,  jails,  public  offices  and  buildings, 
lots,  grounds  and  personal  property,  the  fixtures,  furniture, 
books,  papers  and  appurtenances,  belonging  and  pertaining 
to  the  court-house,  jail  and  public  offices,  belonging  to  any 
county  of  •  this  state,  and  all  cemeteries,  public  squares, 
parks  and  places,  public  buildings,  town  halls,  markets, 
buildings  for  the  use  of  the  fire  departments  and '  military 
organizations,  and  the  lot  and  grounds  thereto  belonging 
and  appertaining,  owned  or  held  by  any  town  or  incorpo 
rated  city,  or  dedicated  by  such  town  or  city  to  health, 
ornament  or  public  use,  or  for  the  use  of  any  fire  or  mili 
tary  company  organized  under  the  laws  of  this  state;  but 
no  article  or  species  of  property  mentioned  in  this  section 
shall  be  exempt  from  execution  issued  upon  a  judgment 
recovered  for  its  price  or  upon  a  mortgage  thereon. 

10th.  The  earnings  of  the  judgment  debtor  for  his  per 
sonal  services  rendered  at  any  time  within  thirty  days  next 


EXECUTION.  461 

preceding  the  levy  of  execution  or  levy  of  attachment,  when 
it  shall  be  made  to  appear  by  the  debtor's  affidavit  or  other 
wise  that  such  earnings  are  necessary  for  the  use  of  his 
family,  residing  in  this  state,  supported  wholly  or  part  by 
his  labor.  Stats.  1870. 

The  judge  or  referee  may  order  any  property  of  the 
judgment  debtor,  not  exempt  from  execution,  in  the  hands 
of  such  debtor  or  any  other  person,  or  due  to  the  judg 
ment  debtor,  to  be  applied  towards  the  satisfaction  of  the 
judgment;  except  that  the  earnings  of  the  debtor  for  his 
personal  services,  at  any  time  within  thirty  days  next  pre 
ceding  the  order,  shall  not  be  so  applied,  when  it  shall 
be  made  to  appear  by  the  debtor's  affidavit  or  otherwise 
that  such  earnings  are  necessary  for  the  use  of  a  family 
supported  wholly  or  partly  by  his  labor.  Pr.  Act,  Sec. 
243.  In  addition  to  the  property  now  exempted  by  law 
from  sale  or  levy  on  execution,  there  shall  be  exempted 
one  sewing  machine,  of  a  value  not  exceeding  one  hundred 
dollars,  in  actual  use  by  each  debtor  or  the  family  of  the 
debtor.  Stats.  1864,  92. 

SEC.  11.  Where  certain  household  furniture  is  claimed 
as  exempt  from  execution,  the  fact  that  the  number  of  beds 
claimed — six  in  all — is  greater  than  is  required  for  the  im 
mediate  and  constant  use  of  the  family,  is  no  objection. 
Such  a  construction  of  the  statute  would  be  too  narrow. 
15  Cal.  266. 

SEC.  12.  "Where  a  party  was  absent  in  San  Francisco  at 
the  time  such  furniture  was  sold  on  execution,  on  account 
of  sickness  in  his  family,  it  is  a  sufficient  excuse  for  not 
claiming  the  exemption  at  the  time,  the  defendant,  plaintiff 
in  execution,  being  aware  of  such  claim — it  having  been 
made  on  a  previous  seizure.  15  Cal.  266. 

SEC.  13.  In  suit  against  plaintiff  in  execution  for  the 
value  of  household  furniture  sold  thereunder,  as  being 
exempt,  defendant  offered  to  show  that  plaintiff  agreed  to 
place  the  property  in  the  hands  of  a  third  person,  to  be 
sold  for  the  benefit  of  defendant,  the  creditor:  Held,  that 
the  evidence  was  not  admissible,  because  such  agreement 
does  not  necessarily  waive  the  exemption  from  forced  sale. 
15  Cal.  266. 


462  JUSTICES'  TREATISE. 

SEC.  14.  An  execution  debtor  who  has  more  horses  than 
the  number  exempt  by  law,  may  elect  which  he  claims  as 
exempt,  but  such  election  must  be  made  and  the  officer 
notified  thereof,  either  at  the  time  of  the  levy  or  within  a 
reasonable  time  thereafter,  or  the  right  to  elect  will  be 
deemed  waived.  22  Cal.  526. 

SEC.  15.  The  homestead,  consisting  of  a  quantity  of 
land,  together  with  the  dwelling-house  thereon  and  its 
appurtenances,  not  exceeding  in  value  the  sum  of  five 
thousand  dollars,  to  be  selected  by  the  husband  and  wife, 
or  either  of  them  or  other  head  of  a  family,  shall  not  be 
subject  to  forced  sale  in  execution  or  any  final  process  from 
any  court.  Gen.  Laws,  3541. 

SEC.  16.     Such  exemption  shall  not  extend  to  any  me 
chanic's,  laborer's  or  vendor's,  lien  lawfully  obtained,  nor 
to  any  mortgage  or  other  lien,  lawfully  taken  or  acquired, 
to  secure  the  purchase-money  for  said  homestead.     Gen. 
Laws,  3542. 

SEC.  17.  The  statute  does  not  contemplate  that  home 
steads  should  be  carved  out  of  land  held  in  joint  tenancy 
or  tenancy  in  common,  because  it  has  not  provided  any 
mode  for  their  separation  and  ascertainment.  5  Cal.  243. 

SEC.  18.  Where  a  partnership  in  embarrassed  circum 
stances  converts  its  means,  upon  the  strength  of  which  it 
has  obtained  credit,  into  real  estate,  to  be  claimed  as  a 
homestead  by  one  of  the  firm,  for  the  purpose  of  placing 
those  means  beyond  the  reach  of  the  creditors,  the  land  is 
liable  to  the  executions  of  the  creditors,  notwithstanding 
the  declaration  of  homestead.  23  Cal.  514. 

SEC.  19.  Where  the  vendor  of  the  plaintiff  (in  replevin) 
is  in  insolvent  or  embarrassed  circumstances,  and  makes  a 
sale  to  discharge  debts  which  are  liens  or  charges  upon  his 
homestead,  for  the  purpose  of  saving  it  to  himself,  of  a 
which  the  plaintiff  is  aware  at  the  time  he  makes  the  pur 
chase,  the  transaction  is  certainly  calculated  to  hinder 
delay  or  defraud,  creditors.  Although  the  law  secures  the 
homestead  from  execution  arising  from  ordinary  indebted 
ness,  it  is  yet  made  chargeable  for  debts  by  the  act  of  the 
parties  interested  in  its  preservation,  and  in  some  cases  by 
operation  of  law.  Where  such  cases  exist  it  would  seem  to 


EXECUTION.  463 

be  only  fair  that  the  homestead  should  remain  answerable 
for  the  debts  charged  upon  it,  and  not,  after  becoming  a 
source  of  credit,  be  relieved,  intentionally,  by  the  disposi 
tion  of  all  the  other  property  of  the  debtor,  leaving  nothing 
for  the  satisfaction  bf  the  other  creditors.  Such  a  sale,  ex 
cept  to  a  creditor  in  payment  of  his  debt  alone,  and  free 
from  knowledge  of  or  collusion  with  the  object  of  the 
debtor,  must  be  considered  a  fraud  in  fact  and  in  law.  It 
is  a  sale  with  the  direct  intent  of  .benefit  or  advantage  to 
the  seller  to  the  injury  of  the  creditors.  5  CaL  489,  490. 

SEC.  20.  The  shares  held  by  the  members  of  all  associa 
tions,  incorporated  under  the  provisions  of  an  act  to  author 
ize  the  formation  of  corporations,  to  provide  the  members 
with  homesteads  or  lots  of  land  suitable  for  homesteads. 
Gen.  Laws,  1072. 

SEC.  21.  Life  insurance,  when  to  secure  the  same  an 
annual  payment  not  exceeding  five  hundred  dollars  is  made 
(Pub.  Laws,  1868-70) ;  also  the  shares  held  by  the  members 
of  all  associations,  incorporated  under  the  provisions  .  of 
this  act,  together  with  any  amount  of  deposits  or  assess 
ments,  shall  be  exempt  from  attachment  or  sale  on  execu 
tion  for  debt,  to  an  extent  not  exceeding,  one  thousand 
dollars  in  such  shares,  deposits  or  assessments,  at  their  par 
value :  provided,  the  person  holding  such  shares  is  not  the 
owner  of  a  homestead  under  the  homestead  laws  of  this 
state.  Gen.  Laws,  1092. 

SEC.  22.  A  being  indebted  to  B,  delivered  to  him  a 
quantity  of  lumber  as  security  for  payment  of  the  debt, 
with  the  understanding  that  B  should  proceed  and  sell  the 
lumber,  and  pay  his  debt  out  of  the  proceeds.  The  lumber 
AV;IS  afterwards  levied  upon  by  the  defendants  under  an 
execution  in  their  favor  against  A,  as  his  property :  Held, 
that  the  lumber  was  not  subject  to  seizure  under  ail  execu 
tion  against  A,  without  payment,  in  the  first  place,  of  his 
indebtedness  to  B.  1  Cat.  124. 

SEC.  23.  The  franchises  of  a  corporation  are  privileges 
granted  and  held  in  personal  trust,  and  cannot  be  trans 
ferred  by  forced  sale  or  by  voluntary  assignment,  except  by 
permission  of  the  government,  and  when  that  permission  is 
granted  the  mode  of  transfer  pointed  out  must  be  followed. 


464  JUSTICES'  TREATISE. 

The  levy  upon  and  sale  of  a  road  by  virtue  of  an  execution 
gives  to  the  purchaser  no  right  or  title  to  the  same,  for 
being  the  property  of  the  public  the  defendant  in  the  exe 
cution  has  no  interest  therein  which  can  be  conveyed  by 
the  officer.  24  CaL  474. 

SEC.  24.  A  ferry  is  a  franchise,  and  is  not  the  subject  of 
levy,  sale  or  delivery,  under  execution.  It  involves  a  per 
sonal  trust  granted  by  the  sovereign,  upon  conditions  im 
posed  upon  the  grantee  alone,  and  his  liability  cannot  be 
removed  by  substitution.  5  CaL  471. 

SEC.  25.  A  ferry-license,  being  a  franchise,  is  not  the 
subject  of  levy  and  sale  under  execution.  Such  a  sale  is  a 
nullity,  and  the  purchaser  acquires  no  right  thereby.  7 
CaL  287. 

SEC.  26.  The  separate  property  of  the  wife  is  not  liable 
for  the  debts  of  the  husband.  See  Sec.  14,  Article  XI  of 
the  Constitution;  also  Sec.  9  of  the  Act  regulating  the  rela 
tion  of  Husband  and  Wife  ;  approved  May  12th,  1853,  165 ; 
see,  also,  George  vs.  Ransom  et  aL,  sequitur. 

SEC.  27.  This  question  arises  from  the  record  in  this 
case:  Can  a  creditor  of  the  husband  subject  the  proceeds 
or  dividends  of  the  separate  estate  of  the  wife  to  his  claim  ? 
In  this  case  the  property  sought  to  be  subjected  was  the 
dividends  of  certain  stock  purchased  by  the  wife  with  her 
separate  funds.  By  the  fourteenth  section  of  article  eleven 
of  the  constitution  it  is  provided:  "All  property,  both  real 
and  personal,  of  the  wife,  owned  or  claimed  by  her  before 
marriage,  and  that  acquired  afterwards  by  gift,  devise  or 
descent,  shall  be  her  separate  property;  and  laws  shall  be 
passed  more  clearly  defining  the  rights  of  the  wife,  in  rela 
tion  as  well  to  her  separate  property  as  to  that  held  in  com 
mon  with  her  husband.  Laws  shall  also  be  passed  provid 
ing  for  the  registration  of  the  wife's  separate  property."  By 
section  nine  of  the  act  regulating  the  relation  of  husband 
and  wife  (Wood's  Digest,  488)  it  is  enacted:  "The  husband 
shall  have  the  entire  management  and  control  of  the  com 
mon  property,  with  the  like  absolute  power  of  disposition 
and  of  his  own  separate  estate ;  and  the  rents  and  profits  of 
the  separate  estate  of  either  husband  or  wife  shall  be  deem 
ed  common  property,  unless  in  the  case  of  the  separate  prop- 


EXECUTION.  465 

erty  of  the  wife,  it  shall  be  provided  by  the  terms  of  the 
instrument  whereby  such  property  may  have  been  bequeath 
ed,  devised  or  given,  to  her,  £hat  the  rents  and  profits  there 
of  shall  be  applied  to  her  sole  and  separate  use;  in  which 
case  the  entire  management  and  disposal  of  the  rents  and 
profits  of  such  property  shall  belong  to  the  wife,  and  shall 
not  be  liable  for  the  debts  of  the  husband."  We  think  the 
legislature  has  not  the  constitutional  power  to  say  that  the 
fruits  of  the  property  of  the  wife  shall  be  taken  from  her 
and  given  to  the  husband  or  to  his  creditors.  If  the  consti 
tutional  provision  be  not  a  protection  to  the  wife  against  the 
exercise  of  this  authority,  the  anomaly  would  seem  to  exist 
of  a  right  of  property  in  one  divested  of  all  beneficial  use — 
the  barren  right  to  hold  in  the  wife  and  the  beneficial  right 
to  enjoy  in  the  husband.  It  is  not  perceived  that  property 
can  be  in  one  in  full  and  separate  ownership  with  a  right  in 
another  to  control  it  and  enjoy  all  of  its  benefits.  The  sole 
value  of  property  is  in  its  use;  to  dissociate  the  right  of 
property  from  the  use,  in  this  class  of  cases,  would  be  to 
preserve  the  name — the  mere  shadow — and  destroy  the 
thing  itself,  the  substance.  It  would  be  to  make  the  wife 
the  trustee  for  the  husband,  holding  the  legal  title  while  he 
held  the  fruits  of  that  title.  This  could  no  more  be  done, 
in  consistency  with  our  ideas  of  property,  during  the  life- . 
time  of  the  wife,  than  for  all  time.  This  was  the  view  taken 
by  the  judge  below,  and  this  judgment  is  affirmed.  15  Cal. 
323,  324. 

SEC.  28.  The  separate  property  of  the  husband  shall  not 
be  liable  for  the  debts  of  the  wife  contracted  before  the 
marriage,  but  the  separate  property  of  the  wife  shall  be  and 
continue  liable  for  all  such  debts.  Gen.  Laws,  3575. 

SEC.  29.  Property  in  the  custody  of  the  law  is  not  liable 
to  seizure  without  an  order  from  the  court  having  charge 
thereof.  .  7  Cal.  37. 

SEC.  30.  Where  two  mules  are  claimed  as  exempt  from 
forced  sale  on  execution,  it  must  be  shown  that  the  party 
claiming  the  mules  habitually  earned  his  living  by  the  use 
of  the  animals  in  question  or  that  he  is*  one  of  the  persons 
mentioned  in  the  statute.  10  Cal.  394. 

SEC.  31.     The  sheriff  or  constable  to  whom  the  execution 
59 


466  JUSTICES'  TREATISE. 

is  directed  shall  proceed  to  execute  the  same  in  the  same 
manner  as  the  sheriff  is  required  by  the  provisions  of  title 
seven  of  this  act  to  proceed  *upon  executions  directed  to 
him,  and  the  constable,  when  the  execution  is  directed  to 
him,  shall  be  vested  for  that  purpose  with  all  the  powers 
of  the  sheriff.  Gen.  Laws,  5533. 

SEC.  32.  The  sheriff  shall  execute  the  writ  against  the 
property  of  the  judgment-debtor  by  levying  on  a  sufficient 
amount  of  property  if  there  be  sufficient,  collecting  or  sell 
ing  the  things  in  action  and  selling  the  other  property,  and 
paying  to  the  plaintiff  or  his  attorney  so  much  of  the  pro 
ceeds  as  will  satisfy  the  judgment,  or  depositing  the  amount 
with  the  clerk  of  the  court.  Any  excess  in  the  proceeds 
over  the  judgment  and  the  sheriff's  fees  shall  be  returned 
to  the  judgment-debtor.  "When  there  is  more  property  of 
the  judgment-debtor  than  is  sufficient  to  satisfy  the  judg 
ment  and  the  sheriff's  fees,  within  the  view  of  the  sheriff, 
he  shall  levy  only  on  such  part  of  the  property  as  the 
judgment-debtor  may  indicafe:  pi'ovided,  that  the  judg 
ment-debtor  be  present  at  and  indicate  at  the  time  of  the 
levy  such  part;  and  provided,  that  the  property  indicated 
be  amply  sufficient  to  satisfy  such  judgment  and  fees. 
Gen.  Laws,  5159. 

How  Levy  Made. 

f 

SEC.  33.  The  property  discovered  in  proceedings  supple 
mentary  to  execution  is  in  the  custody  of  the  law,  and  must 
be  applied  under  the  order  of  the  court,  and  not  given  up 
to  the  creditor  except  in  proper  cases.  7.  Col.  202. 

SEC.  34.  The  service  of  a  copy  of  execution  and  notice 
of  garnishment  upon  a  third  party  constitutes  no  lien  on 
property  of  the  debtor  in  his  hands  capable  of  manual 
delivery.  6  Cal.  196. 

SEC.  35.  If  the  property  levied  on  be  claimed  by  a  third 
person  as  his  property,  the  sheriff  shall  summon  from  his 
county  six  persons  qualified  as  jurors  between  the  parties, 
to  try  the  validity  of  the  claim.  He  shall  also  give  notice 
of  the  claim  and  of  the  time  of  trial  to  the  plaintiff,  who 
may  appear  and  contest  the  claim  before  the  jury.  The 
jury  and  the  witnesses  shall  be  sworn  by  the  sheriff,  and  if 
their  verdict  be  in  favor  of  the  claimant,  the  sheriff  may 


EXECUTION.  467 

relinquish  the  levy,  unless  the  judgment  creditor  gives  him 
a  sufficient  indemnity  for  proceeding  therein.  The1  fees  of 
the  jury,  the  sheriff  and  the  witnesses,  shall  be  paid  by  the 
claimant,  if  the  verdict  be  against  him,  otherwise  by  the 
plaintiff.  On  the  trial  the  defendant  and  the  claimant  may 
be  examined  by  the  plaintiff  as  witnesses.  Gen.  Laics, 
5157. 

SEC.  36.  The  interest  of  a  miner  in  his  mining  claim  is 
property,  and,  not  having  been  exempted  by  law,  may  be 
taken  in  execution.  9  Col.  142.  Property  is  the  exclusive 
right  of  possessing,  enjoying  and  disposing,  of  a  thing;  it 
is  the  "right  and  interest  which  a  man  has  in  lands  and 
chattels  to  the  exclusion  of  others;"  and  the  term  is  suffi 
ciently  comprehensive  to  include  every  species  of  estate, 
real  or  personal. 

SEC.  37.  If  a  judgment  be  the  subject  of  levy  and  sale, 
as  appellant  contends,  the  purchaser  would  only  take  as 
•assignee.  No  title  to  the  chose  in  action  different  from 
that  passing  by  act  of  assignment,  made  immediately  by 
the  owner  of  it,  would  be  communicated  by  the  sheriffs 
sale.  A  judgment  is  not  a  negotiable  instrument  like  a  bill 
of  exchange,  by  the  law  merchant,  but  is  a  mere  chose  in 
action,  vesting  an  equitable  right  in  the  assignee  to  the  pro 
ceeds  of  it,  with  a  right  to  the  usual  and  legal  means  ofc 
collecting  the  amount  due  on  it.  But  in  this  case  it  appears, 
that  before  the  levy  and  sale,  the  judgment  had  been  as 
signed,  for  value,  by  the  holder  of  it  to  Moore  <fe  Welty. 
Their  right  first  accruing,  by  the  assignment  of  the  execu 
tion  debtor,  took  precedence  of  the  sheriff's  assignment 
subsequently  made.  The  sheriff  sold  the  interest  of  the 
creditor  in  the  judgment,  but  the  title  was  already  gone 
before  the  levy.  Between  two  bona  fide  purchasers  of  a 
chose  in  action,  not  negotiable,  the  purchaser  first  in  time  is 
prior  in  right.  It  does  not  avail  to  say  that  the  execution 
sale  carried  the  legal  title  and  the  prior  assignment  only  an 
equity ;  the  title  sold  in  both  cases  is  precisely  the  same — 
there  being  no  difference,  so  far  as  affects  the  quality  of 
the  interest  conveyed  between  a  sale  made  voluntarily  by 
the  party  himself  and  a  sale  made  for  him  by  the  sheriff 
who,  in  making  it,  acts  as  his  agent.  18  Cal.  438. 


468  JUSTICES'  TREATISE. 

SEC.  38.  Where  the  execution  debtor  owns  property 
jointly  with  another,  a  sheriff,  who  has  such  execution,  has 
the  right  to  levy  on  such  property  and  take  it  into  posses 
sion  for  the  purpose  of  subjecting  it  to  sale.  10  Cal.  380. 

SEC.  39.  In  an  action  against  a  sheriff  for  seizing  and 
selling  certain  personal  property,  alleged  to  belong  to 
plaintiff,  under  an  execution  against  one  Teal,  it  being 
averred  in  the  answer  that  the  property  belonged  to  Teal : 
Held,  that  evidence  tending  to  prove  it  was  the  partnership 
property  of  Teal  and  plaintiff,  was  proper,  and  that  if  they 
were  partners  and  as  such  owned  the  property,  plaintiff 
could  not  recover.  Hughes  vs.  Boring,  16  Cal.  82. 

SEC.  40.  The  interest  of  one  partner  in  partnership  prop 
erty  is  such  an  estate  under  our  statute  as  may  be  sold  for 
his  debts;  it  is  a  legal  estate  in  chattels.  It  is  true  that,  as 
between  partners,  the  interest  of  each  is  only  the  residuum 
of  the  property  left  after  the  settlement  of  the  firm  debts; 
and  that  the  rights  of  firm  creditors  and  the  several  part 
ners  are  paramount  to  the  claims  of  separate  creditors  of 
the  firm.  But  this  interest  of  the  partner  thus  defined  is 
subject  to  levy  for  his  debts.  12  Cal.  198. 

SEC.  41.  A,  ferry  boat,  used  for  the  transportation  of 
passengers,  teams,  etc.,  across  a  stream  is  not  exempt  from 
execution  because  the  ferry  is  on  the  mail-route  and  the 
boat  is  used  also  to  convey  the  United  States  mail  across 
the  stream.  23  Cal.  257. 

Sale  Under — Notice  of. 

SEC.  42.  Before  the  sale  of  property  on  execution,  notice 
thereof  shall  be  given  as  follows : 

1st.  In  case  of  perishable  property,  by  posting  written 
notice  of  the  time  and  place  of  sale  in  three  public  places  of 
the  township  or  city  wThere  the  sale  is  to  take  place,  for 
such  a  time  as  may  be  reasonable,  considering  the  character 
and  condition  of  the  property. 

2d.  In  case  of  other  personal  property,  by  posting  a  sim 
ilar  notice  in  three  public  places  in  the  township  or  city 
•where  the  sale  is  to  take  place,  not  less  than  five  nor  more 
than  ten  days  successively. 

3d.  In  case  of  real  property,  by  posting  a  similar  notice, 


EXECUTION.  469 

particularly  describing  the  property,  for  twenty  days  suc 
cessively,  in  three  public  places  of  the  township  or  city 
where  the  property  is  situated,  and  also  when  [where]  the 
property  is  to  be  sold,  and  publishing  a  copy  thereof  once 
a  week  for  the  same  period  in  some  newspaper  published 
in  the  county,  if  there  be  one. 

4th.  When  the  judgment  under  which  the  property  is  to 
be  sold  is  made  payable  in  a  specified  kind  of  money  or 
currency,  the  several  notices  required  by  this  section  shall 
state  the  kind  of  money  or  currency  in  which  bids  may  be 
made  at  such  sale,  which  shall  be  the  same  as  that  specified 
in  the  judgment.  Gen.  Laws,  5160. 

SEC.  43.  The  provisions  of  statutes  similar  to  ours,  with 
respect  to  levy  and  notice  of  sale  under  execution,  are 
merely  directory,  and  the  failure  of  the  officer  to  comply 
with  the  requirements  of  the  law,  in  this  respect,  would  not 
vitiate  such  sale,  but  the  party  aggrieved  by  his  neglect  is 
left  to  his  remedy  by  an  action  against  the  officer.  6  Cal. 
50. 

SEC.  44.  The  remedy  against  a  sheriff  for  selling  prop-- 
erty  on  insufficient  notice,  is  confined  to  the  statutory  rem 
edy.  17  Cal.  626. 

SEC.  45.  An  officer  selling  without  the  notice  prescribed 
by  section  forty-two  of  this  chapter,  shall  forfeit  five  hun 
dred  dollars  to  the  aggrieved  party,  in  addition  to  his  actual 
damages;  and  a  person  willfully  taking  down  or  defacing  the 
notice  posted,  if  done  before  the  sale  or  the  satisfaction  of 
the  judgment  [if  the  judgment  be  satisfied  before  sale],  shall 
forfeit  five  hundred  dollars.  Gen.  Laws,  5161. 

SEC.  46.  An  action  cannot  be  maintained  by  the  defend 
ant  in  an  execution  to  recover  of  the  officer  the  penalty  pre 
scribed  by  section  two  hundred  and  twenty-two  of  the  prac 
tice  act  for  selling  without  proper  notice,  unless  by  a  sale 
so  made  the  complainant  has  been  deprived  of  his  property. 
If  the  attempted  sale  is  a  nullity  and  passes  no  title,  no 
injury  has  been  sustained,  and  no  right  of  action  for  the 
forfeiture  accrues.  22  Col.  263. 

SEC.  47.  All  sales  of  property  under  execution  shall  be 
made  at  auction  to  the  highest  bidder,  and  shall  be  made 
between  the  hours  of  nine  in  the  morning  and  five  in  the 


470  JUSTICES'  TREATISE. 

afternoon ;  after  sufficient  property  has  been  sold  to  satisfy 
the  execution,  no  more  shall  be  sold.  Neither  the  officer, 
holding  the  execution  nor  his  deputy,  shall  become  a  pur 
chaser  or  be  interested  in  any  purchase  at  such  sale.  When 
the  sale  is  of  personal  property,  capable  of  manual  delivery, 
it  shall  be  within  view  of  those  who  attend  the  sale,  and  be 
sold  in  such  parcels  as  are  likely  to  bring  the  highest  price ; 
and  when  the  sale  is  of  real  property  and  consisting  of  sev 
eral  known  lots  or  parcels,  they  shall  be  sold  separately; 
or  when  a  portion  of'  such  real  property  is  claimed  by  a 
third  person  and  he  requires  it  to  be  sold  separately,  such 
portion  shall  be  thus  sold.  ^  The  judgment  debtor,  if  pres 
ent  at  the  sale,  may  also  direct  the  order  in  which  property, 
real  or  personal,  shall  be  sold,  when  such  property  consists 
of  several  known  lots  or  parcels  or  of  articles  which  can  be 
sold  to  advantage  separately,  and  the  sheriff  shall  be  bound 
to  follow  such  directions.  Gen.  Laws,  5162. 

SEC.  48.  If  contingent  and  complicated  contracts  are  the 
subject  of  levy  and  sale,  they  cannot  be  levied  upon  and 
sold  without  being  in  the  possession  of  the  officer  at  the 
sale  to  be  exhibited  to  the  bystanders  and  assigned  to  the 
purchaser,  unless  a  full  and  accurate  description  of  the  par 
ticular  interest  and  chose  in  action  with  all  of  its  conditions 
and  covenants,  and  a  full  explanation  of  the  facts  determin 
ing  the  value  of  the  chose  be  given  by  the  levy  and  an 
nounced  at  the  sale.  It  is  of  -the  essence  of  every  public 
sale  that  there  be  a  description  sufficient  to  apprise  the 
bystanders,  with  reasonable  accuracy,  of  what  is  sold  or 
offered.  13  Col.  15,  23,  24. 

Certificate  of  Sale. 

SEC.  49.  When  the  purchaser  of  any  personal  property, 
capable  of  manual  delivery  shall  pay  the  purchase-money, 
the  officer  making  the  sale  shall  deliver  to  the  purchaser 
the  property,  and  if  desired  shall  execute  and  deliver  to 
him  a  certificate  of  the  sale  and  payment.  Such  certificate 
shall  convey  to  the  purchaser  all  the  right,  title  and  interest, 
which  the  debtor  had  in  and  to  such  property  on  the  day 
the  execution  was  levied.  Gen.  Laws,  5166. 

SEC.  50.     A  sheriff's  bill  of  sale  of  personal  property  sold 


EXECUTION.  471 

on  execution  need  not  contain  all  the  formalities  of  a  regu 
lar  certificate.     25  Cat,  545. 

SEC.  51.  When  the  purchaser  of  any  personal  property, 
not  capable  of  manual  delivery,  shall  pay  the  purchase- 
money,  the  officer  making  the  sale  shall  execute  and  deliver 
to  the  purchaser  a  certificate  of  sale  and  payment.  Such 
certificate  shall  convey  to  the  purchaser  all  right,  title  and 
interest,  which  the  debtor  had  in  and  to  such  property  on 
the  day  the  execution  was  levied.  Upon  a  sale  of  real 
property,  the  purchaser  shall  be  substituted  to  and  acquire 
all  the  right,  title,  interest  and  claim,  of  the  judgment 
debtor  thereto ;  and  when  the  estate  is  less  than  a  leasehold 
of  two  years'  unexpired  term,  the  sale  shall  be  absolute. 
In  all  other  cases,  the  property  shall  be  subject  to  redemp 
tion,  as  provided  in  this  act.  The  officer  shall  give  to  the 
purchaser  a  certificate  of  sale,  containing  : 
.  1st.  A  particular  description  of  the  real  property  sold. 

2d.  The  price  bid  for  each  distinct  lot  or  parcel. 

3d.  The  whole  price  paid. 

4th.  When  subject  to  redemption,  it  shall  be  so  stated. 

And  when  the  judgment  under  which  the  sale  has  been 
made  is  payable  in  a  specified  kind  of  money  or  currency, 
the  certificate  shall  also  state  the  kind  of  money  or  currency 
in  which  such  redemption  may  be  made,  which  shall  be  the 
same  as  that  specified  in  the  judgment.  A  duplicate  of 
such  certificate  shall  be  filed  by  the  officer  in  the  office  of 
the  recorder  of  the  county.  Gen.  Laws,  5167. 

Purchaser  Refusing  to  Pay. 

SEC.  52.  If  a  purchaser  refuse  to  pay  the  amount  bid  by 
him  for  property  struck  off  to  him  at  a  sale  under  execution, 
the  officer  may  again  sell  the  property  at  any  time  to  the 
highest  bidder,  and  if  any  loss  be  occasioned  thereby,  the 
officer  may  recover  the  amount  of  such  loss  with  costs,  by 
motion,  upon  previous  notice  of  five  days  before  any  court, 
or  before  any  justice  of  the  peace,  if  the  same  shall  not 
exceed  his  jurisdiction.  Such  court  or  justice  shall  pro 
ceed  in  a  summary  manner -a-nd  give  judgment,  and  issue 
execution  therefor  forthwith,  but  the  defendant  may  claim 
a  jury.  And  the  same  proceedings  may  be  had  against  any 


472  JUSTICES'  TREATISE. 

subsequent  purchaser  who  shall  refuse  to  pay,  'and  the  offi 
cer  may,  in  his  discretion,  thereafter  reject  the  bid  of  any 
person  so  refusing.  The  two  preceding  sections  shall  not 
be  construed  to  make  the  officer  liable  for  any  more  than 
the  amount  bid  by  the  second  or  subsequent  purchaser  and 
the  amount  collected  from  the  purchaser  refusing  to  pay. 
Gen.  Laivs,  5163-5165. 

SEC.  53.  A  purchaser  at  sheriff's  sale  acquires  no  rights 
whatever  against  the  sheriff  for  property  sold,  unless  at  the 
time  of  the  sale  he  has  paid  down  in  cash  the  whole  of  the 
purchase  money.  5  Cal.  68. 

Redemption. 

SEC.  54.  Property  sold  subject  to  redemption,  as  pro 
vided  in  this  act,  or  any  part  sold  separately,  may  be  re 
deemed  in  the  manner  hereinafter  provided,  by  the  follow 
ing  persons  or  their  successors  in  interest : 

1st.  The  judgment-debtor  or  his  successor  in  interest  in 
the  whole  or  any  part  of  the  property. 

2d.  A  creditor,  having  a  lien  by  judgment  or  mortgage 
on  the  property  sold  or  on  some  share  or  part  thereof  sub 
sequent  to  that  on  which  the  property  was  sold.  The  per 
sons  mentioned  in  the  second  subdivision  of  this  section 
are  termed  redemptioners. 

The  judgment-debtor  or  redemptioner  may  redeem  the 
property  from  the  purchaser  within  six  months  after  the 
sale,  on  paying  the  purchaser  the  amount  of  his  purchase, 
with  twelve  per  cent,  thereon  in  addition,  together  with  the 
amount  of  any  assessment  or  taxes  which  the  purchaser  may 
have  paid  thereon  after  the  purchase  and  interest  on  such 
amount ;  and  if  the  purchaser  be  also  a  creditor  having  a 
prior  lien  to  that  of  the  redemptioner  other  than  the  judg 
ment  under  which  such  purchase  was  made,  the  amount  of 
such  lien  with  interest.  Gen.  Laws,  5169,  5170. 

SEC.  55.  It  is  certain,  from  the  explicit  language  of  the 
foregoing  section,  that  the  purchaser  at  sheriff's  sale  may 
have  a  lien  upon-  the  property  prior  to  that  of  the  redemp 
tioner.  The  fact  that  he  is  the  creditor  does  not  divest  his 
lien.  He  may  be  both  a  creditor  and  a  purchaser  and  still 
have  a  prior  lien  to  that  of  the  redemptioner.  This  can 


EXECUTION.  473 

only  be  upon  the  principle  that  the  legal  estate  •  is  still  in 
the  .judgment-debtor  until  the  delivery  of  the  sheriff's  deed, 
and  if  in  the  debtor,  it  is  such  an  estate  as  may  be  the  sub 
ject  of  a  lien,  a  sale  under  execution  or  of  a  conveyance  by 
deed  from  the  debtor.  In  all  cases  where  a  mere  lien  ex 
ists,  the  legal  estate  must  be  in  some  other  party  than  the 
mortgagee.  This  legal  estate  and  the  consequent  right  to 
discharge  the  lien  and  save  the  estate  is  of  value  and  can 
be  sold.  9  Col.  118. 

SEC.  56.     If  property  be  so  redeemed  by  a  redemptioner, 
either  the  judgment-debtor  or  another  redemptioner  may 
within  sixty  days  after  the  last  redemption  again  redeem  it 
from  the  last  redemptioner,  on  paying  the  sum  paid  on  such 
last  redemption  with  four  per  cent,  thereon  in  addition  and 
the  amount  of  any  assessment  or  taxes  which  the  said  last . 
redemptioner  may  have  paid  thereon  after  the  redemption 
by  him,  with  interest  on  such  amount,  and  in  addition  the 
amount  of  any  liens  held  by  said  last  redemptioner  prior  to 
his  own,  with  interest :  provided,  that  the  judgment  under 
which  the  property  was  sold  need  not  be  so  paid  as  a  lien. 
The  property  may  be  again,  and  as  often  as  the  debtor  or  a 
redemptioner  is  so  disposed,  redeemed  from  any  previous 
redemptioner  within  sixty  days  after  the  last  redemption 
•\Vith  four  per  cent,  thereon  in  addition,  and  the  amount  of 
any  assessments  or  taxes  wSich  the  last  previous  redemp 
tioner  paid  after  the  redemption  by  him  with  interest  there 
on,  and  the  amount  of  any  liens  other  than  the  judgment 
under  which  the  property  was  sold  held  by  the  last  redemp 
tioner  previous  to  his  own,  with  interest.      Notice  of  re 
demption  shall  be  given  to  the  sheriff ;  if  no  redemption  be 
made  within  six  months  after  the  sale,  the  purchaser  or  his 
assignee  shall  be  entitled  to  a  conveyance,  or  if  so  redeemed, 
whenever  sixty  days  have  elapsed  and  no  other  redemption 
has  been  made  and  notice  thereof  given,  the  time  for  re 
demption  shall  have  expired  and  the  last  redemptioner  or 
his  assignee  shall  be  entitled  to  a  sheriff's  deed.     If  the 
debtor  redeem  at  any  time  before  the  time  for  redemption 
expires,  the  effect  of  the  sale  shall  be  terminated  and  he  be 
restored  to  his  estate.     The  payments  mentioned  as  afore 
said  may  be  made  to  the  purchaser  or  redemptioner,  as  the 
60 


474  JUSTICES'  TKEATISE. 

case  may  be,  or  for  him,  to  the  officer  who  made  the  sale. 
"When  the  judgment  under  which  the  sale  has  been  made  is 
payable  in  a  specified  kind  of  money  or  currency,  said  pay 
ments  shall  be  made  in  the  same  kind  of  money  or  cur 
rency,  and  a  tender  of  the  money  shall  be  equivalent  to 
payment.  Gen.  Laws,  5171,  5172. 

A  redemptioner  shall  produce  to  the  officer  or  person 
from  whom  he  seeks  to  redeem  and  serve  with  his  notice 
to  the  sheriff  : 

1st.  A  copy  of  the  docket  of  the  judgment  under  which 
he  claims  the  right  to  redeem,  certified  by  the  clerk  of  the 
court  or  of  the  county  where  the  judgment  is  docketed,  or 
if  he  redeem 'upon  a  mortgage  or  other  lien,  a  note  of  the 
record  thereof  certified  by  the  recorder. 

2d.  A  copy  of  any  assignment  necessary  to  establish  his 
claim,  verified  by  the  affidavit  of  himself  or  of  a  subscribing 
witness  thereto. 

3d.  An  affidavit  by  himself  or  his  agent,  showing  the 
amount  then  actually  due  on  the  lien. 

Until  the  expiration  of  the  time  allowed  for  redemption, 
the  court  may  restrain  the  commission  of  waste  on  the 
property  by  order  granted  with  or  without  notice,  on  the 
application  of  the  purchaser  or  the  judgment-creditor.  But 
it  shall  not  be  deemed  waste  for  the  person  in  possession  of 
the  property  at  the  time  of  sale  or  entitled  to  possession 
afterwards,  during  the  period  allowed  for  redemption,  to 
continue  to  use  it  in  the  same  manner  in  which  it  was  pre 
viously  used,  or  to  use  it  in  the  ordinary  course  of  hus 
bandry,  or  to  make  the  necessary  repairs  of  buildings 
thereon,  or  to  use  wood  or  timber  on  the  property  there 
for,  or  for  the  repair  of  fences,  or  for  fuel  in  his  family 
while  he  occupies  the  property.  The  purchaser  from  the 
time  of  the  sale  until  a  redemption,  and  a  redemptioner 
from  the  time  of  his  redemption  until  another  redemption, 
shall  be  entitled  to  receive  from  the  tenant  in  possession 
the  rents  of  the  property  sold  or  the  value  of  the  use  and 
occupation  thereof.  Gen.  Laws,  5171-5175. 

SEC.  57.  A  purchaser  of  land  at  sheriff's  sale  can  main 
tain  an  action  for  rent  against  the  tenant  in  possession 
under  the  judgment-debtor  before  the  expiration  of  the  six 


EXECUTION.  475 

months  allowed  for  redemption,  and  as  often  as  the  rent 
becomes  due  tinder  the  terms  of  the  lease  existing  when  he 
purchased.  The  sale  operates  as  an  assignment  of  the  lease 
for  the  time.  7  Cal.  46. 

SEC.  58.  A  judgment-debtor  who  redeemed  his  property 
within  twenty-one  days  after  the  sheriff's  sale,  but  who  had 
received  from  his  tenants  in  possession  four  hundred  dol 
lars  rent  between  the  day  of  sale  and  the  redemption,  was 
held  liable  to  the  purchaser  at  the  sale  for  the  amount. so 
received.  17  Cal.  596. 

SEC.  59.  At  sheriff's  sale  of  premises  in  a  foreclosure 
suit  by  plaintiff  against  R.,  plaintiff  became  the  purchaser. 
During  the  six  months  succeeding  the  sale,  C.,  acting  as 
agent  of  defendants,  occupied  the  premises,  carrying  on  the 
business  of  a  saloon.  At  the  end  of  six  months,  defend 
ants,  as  mortgagees,  redeemed :  Held,  that  the  defendants 
are  tenants  in  possession  within  the  two  hundred  and  thir 
ty-sixth  section  of  the  practice  act,  and  must  pay  plaintiff 
for  use  and  occupation  for  the  six  months.  18  Cal.  113. 

Purchaser  Evicted  may  Recover  Price  of. 

SEC.  60.  If  the  purchaser  of  real  property,  sold  on  exe 
cution  or  his  successor  in  interest,  be  evicted  therefrom  in 
consequence  of  irregularities  in  the  proceedings  concerning 
the  sale,  or  of  the  reversal  or  discharge  of  the  judgment, 
he  may  recover  the  price  paid,  with  interest,  from  the  judg 
ment  creditor.  If  the  purchaser  of  property  at  sheriff's  sale 
or  his  successor  in  interest,  fail  to  recover  possession,  in 
consequence  of  irregularity  in  the  proceedings  concerning 
the  sale  or  because  the  property  sold  was  not  subject  to 
execution  and  sale,  the  court  having  jurisdiction  thereof 
shall,  on  petition  of  such  party  in  interest  or  his  attorney, 
revive  the  original  judgment  for  the  amount  paid  by  such 
purchaser  at  the  sale,  with  interest  thereon  from  the  time 
of  payment,  at  the  same  rate  that  the  original  judgment 
bore ;  and  when  so  revived  the  said  judgment  shall  have  the 
same  effect  as  an  original  judgment  of  the  said  court  of  that 
date  and  bearing  interest  as  aforesaid,  and  any  other  or 
after-acquired  property,  rents,  issues  or  profits,  of  the  said 
debtor,  shall  be  liable  to  levy  and  sale  under  execution  in 


476  JUSTICES'  TKEATISE. 

satisfaction  of  such  debt :  provided,  that  no  property  of  such 
debtor  sold  bonajide  before  the  filing  of  such  petition,  shall 
be  subject  to  the  lien  of  said  judgment;  and,  provided  fur 
ther,  that  notice  of  the  filing  of  su*ch  petition  shall  be  made 
by  filing  a  notice  thereof  in  the  recorder's  office  of  the  coun 
ty  where  such  property  may  be  situated;  and  that  said  judg 
ment  shall  be  revived  in  the  name  of  the  original  plaintiff  or 
plaintiffs,  for  the  use  of  said  petitioner,  the  party  in  inter 
est.  Gen.  Laws,  5176. 

Deed. 

SEC.  61.  Although  a  sheriff's  deputy  may  execute  a  deed 
for  property  sold  under  execution,  he  must  execute  it  in*the 
name  of  the  sheriff.  If  executed  in  his  own  name  it  is 
decisive  against  the  party  claiming  under  it.  3  CaL  266. 

SEC.  62.  A  sheriff's  or  constable's  deed,  executed  under 
an  execution  sale  which  does  not  recite  the  judgment  on 
which  the  execution  was  issued,  is  void.  25  CaL  230. 


CHAPTER      XLIX. 

FENCES. 

SECTION  1.  In  Amador,  San  Diego,  Santa  Barbara,  Trin 
ity,  Klamath  and  Siskiyou  counties,  a  lawful  fence  must  be : 
If  made  of  stone,  four  and  one-half  feet  high ;  if  made  of 
rails,  five  and  one-half  feet  high ;  if  made  upon  the  embank 
ment  of  a  ditch  three  feet  high  from  the  bottom  of  the 
ditch,  the  fence  must  be' two  feet  high  ;  it  must  be  substan 
tial  and  reasonably  strong  and  made  so  close  stock  cannot 
get  their  heads  through  it,  and  if  made  to  turn  small  stock, 
sufficiently  tight  to  turn  them.  A  hedge  fence,  to  be  con 
sidered  a  lawful  fence,  must  be  five  feet  high  and  sufficiently 
close  to  turn  stock.  Gen.  Laws,  3029. 

SEC.  2.  The  following  is  a  lawful  fence  in  all  the  coun 
ties,  except  the  above-named  counties  and  Tuolumne,  San 
Bernardino,  Colusa,  Placer,  Yuba,  Shasta,  Tehama,  Contra 
Costa,  Sonoma,  El  Dorado  and  Marin : 

1st.  Wire  fence  shall  be  made  of  posts  not  less  than 
twelve  inches  in  circumference,  set  in  the  ground  not  less 


FENCES.  477 

than  eighteen  inches  and  not  more  than  eight  feet  apart, 
with  not  less  than  three  horizontal  wires,  each  one-quarter 
inch  in  diameter,  the  first  eighteen  inches  from  the  ground, 
the  other  two  at  intervals  of  one  foot  between  each,  well 
stretched  and  securely  fastened,  with  one  slat,  rail,  pole  or 
plank,  securely  fastened  to  the  post  not  less  than  four  and 
one-half  feet  from  the  ground. 

2d.  Post  and  rail  fences  shall  be  made  of  posts,  of  the 
same  size  and  distance  apart  and  depth  in  the  ground  as 
above,  with  three  rails,  slats  or  planks,  of  suitable  size  and 
strength,  the  top  one  to  be  four  and  one-half  feet  from  the 
ground,  the  other  two  at  equal  distances  between  the  first 
and  the  ground,  fastened  to  the  post. 

3d.  Picket  fences  shall  be  of  the  same  height  as  above, 
made  of  pickets,  each  not  less  than  six  inches  in  circum 
ference  and  not  more  than  six  inches  apart,  and  shall  be 
driven  in  the  ground  not  less  than  ten  inches,  all  well 
secured  at  the  tops  with  slats  or  caps. 

4th.  Ditch  and  pole  fences  shall  be  made  of  a  ditch  not 
less  than  four  feet  wide  on  top  and  three  feet  deep ;  em 
bankments  thrown  up  on  the  inside  of  the  ditch,  with  sub 
stantial  posts  set  in  the  embankment  not  more  than  eight 
feet  apart,  and  a  plank,  pole,  rail  or  slat,  securely  fastened 
to  said  posts  at  least  five- feet  from  the  bottom  of  the  ditch. 

5th.  Pole  fences  shall  be  four  and  one-half  feet  high, 
with  stakes  not  less  than  three  inches  in  diameter,  set  in 
the  ground  eighteen  inches,  seven  feet  apart,  and  with  not 
less  than  six  horizontal  poles  well  secured  to  stakes ;  if  six 
feet  apart,  five  horizontal  poles ;  if  three  or  four  feet,  four 
poles ;  if  two  feet,  three  poles,  ajid  the  stakes  need  not 
be  more  than  two  inches  in  diameter ;  if  one  foot  apart,  one 
pole,  and  the  stakes  need  not  be  more  than  two  inches  in 
diameter.  The  above  is  a  lawful  fence  so  long  as  the  poles 
are  securely  fastened  and  in  a  good  state  of  preservation. 

6th.  Brush  fences  shall  be  four  and  one-half  feet  high 
and  at  least  twelve  inches  wide,  writh  stakes  not  less  than 
two  inches  in  diameter,  set  an  the  ground  not  less  than 
eighteen  inches,  one  on  each  side  every  third  foot,  tied 
together  at  the  top,  with  one  horizontal  pole  tied  to  the 
outside  stake  five  feet  from  the  ground.  Gen.  Laivs,  3032. 


478  JUSTICES'  TREATISE. 

SEC.  3.  In  Sonoma,  Napa,  El  Dorado,  Yuba  and  Marin, 
a  lawful  fence  shall  be : 

1st.  Post  and  rail  fences,  not  less  than  four  "by  six  inches, 
set  in  the  ground  not  less  than  two  feet,  with  rails  not  less 
than  three  inches  thick,  placed  not  more  than  five  inches 
apart  for  the  first  three  feet  and  after  that  not  more  than 
eight  inches  apart,  the  fence  to  be  not  less  than  five  feet 
high. 

2d.  Worm  fences  shall  be  five  feet  high,  with  additional 
stakes  and  riders ;  no  greater  space  to  intervene  between 
the  rails  than  in  a  post  and  rail  fence. 

3d.  Post  and  slat  fences  shall  be  of  the  same  height  and 
with  the  same  space  between  the  slats  ;  the  posts  to  be  not 
less  than  twelve  inches  in  circumference  and  set  not  less 
than  two  feet  in  the  ground ;  the  slats  not  to  be  less  than 
one  and  one-half  inches  thick  and  fastened  with  twelve- 
penny  nails. 

4th.  P.aling  fence  shall  be  of  the  same  height,  post  of  the 
same  size,  set  in  the  ground  the  same  depth  and  not  more 
than  ten  feet  apart. 

5th.  Ditch  fence  shall  be  four  feet  wide  at  top  and  three 
feet  deep,  with  posts  set  in  the  embankment  not  over  seven 
feet  apart,  with  three  slats  not  less  than  four  inches  wide 
and  one  and  a  half  inches  thick,  all  wrell  fastened  to  the 
post.  Gen.  Laws,  3034. 

SEC.  4.  In  Contra  Costa,  a  fence  is  a  lawful  fence  con 
structed  of  posts  of  reasonable  size  and  strength,  firmly  set 
in  the  ground,  not  more  than  tw;elve  feet  apart  if  a  rail  or 
picket  fence,  and  not  more  than  eight  feet  if  a  plank  fence, 
the  rails  or  planks  of  reasonable  size  and  strength,  securely 
fastened  to  the  posts  to  the  height  of  four  and  a  half  feet 
and  reasonably  close.  If  a  picket  fence,  the  pickets  of  or 
dinary  size  and  strength,  strongly  nailed  to  a  rail  above  and 
one  below,  or  driven  into  the  ground  and  nailed  to  a  rail 
above,  reasonably  close,  and  four  and  a  half  feet  high.  If 
a  ditch  fence,  three  and  a  half  feet  wide  at  the  top,  three  feet 
deep,  embankment  on  the  inside  of  the  inclosure,  with  a 
rail  or  plank  or  picket  fence  on  the  embankment  to  the 
height  of  three  feet,  or  any  other  kind  of  fence  equivalent 
in  height,  quality  and  strength,  to  the  above  kinds  of  fences. 
Gen.  Laws,  3047. 


FENCES.  479 

SEC.  5.  In  San  Bernardino,  Colusa,  Shasta,  Tehama, 
Placer  and  Yuba,  a  lawful  fence  must,  if  built  of  stone,  be 
four  and  one-half  feet  high;  if  rails,  five  and  one-half  feet 
high;  if  a  post  and  rail  fence  or  picket  fence,  it  shall  be  con 
structed  of  posts  of  a  reasonable  size  and  strength,  securely 
fastened  to  the  posts,  to  the  height  of  four  and  a  half  feet 
and  reasonably  close ;  if  a  picket  fence,  the  pickets  shall  be 
strongly  nailed  to  a  rail  above,  reasonably  close ;  if  a  ditch 
fence,  the  ditch  to  be  at  least  two  and  a  half  feet  deep  and 
three  feet  wide  at  the  top,  the  embankment  to  be  either  on 
the  inside  or  outside  of  the  inclosure,  with  a  rail,  board  or 
picket,  fence  on  the  embankment  to  the  height  of  three  feet ; 
or  any  other  kind  of  fence  equivalent  in  height,  quality  and 
strength,  with  the  above  kind  of  fences,  is  a  lawful  fence. 
Gen.  Laws,  3050. 

SEC.  6.  "When  a  fence  has  been  erected  by  any  person 
on  the  line  of  his  land  and  the  person  owning  the  land  ad 
joining  thereto  shall  make  or  cause  to  be  made,  an  inclosure 
on  the  opposite  side  of  such  fence  so  that  such  fence  may 
answer  the  purpose  of  inclosing  his  ground  also,  such  per 
son  shall  pay  the  owner  of  such  fence  already  erected  one- 
half  the  value  of  so  much  thereof  as  serves  as  a  partition 
fence  between  them.  And  if  the  party  so  inclosing  shall 
neglect  or  refuse  to  pay  the  one-half,  the  land  so  inclosed 
shall  become  liable  therefor,  and  the  value  of  one-half  of 
such  fence  shall  become  and  remain  a  lien  upon  such  land 
and  shall  draw  interest  at  the  rate  of  fifteen  per  cent,  per 
annum  until  paid.  Notice  of  such  lien  shall  be  filed  in  the 
office  of  the  recorder  of  the  county,  as  provided  for  me 
chanic's  lien.  The  value  of  the  fence  at  the  time  of  the 
inclosure,  with  interest  thereon,  shall  be  the  amount  to 
which  the  builder  is  entitled.  Gen.  Laws,  3065. 

SEC.  7.  When  it  shall  be  necessary  to  build  a  partition 
fence,  in  order  to  protect  the  rights  and  interests  of  either 
of  the  adjoining  occupants  of  land,  the  other  or  others, 
when  notified  of  such  fact,  shall  proceed  to  erect  one-half 
of  such  partition  fence — shall  be  erected  as  nearly  as  possi 
ble  on  the  line  of  such  land.  And  if,  after  six  months'  no 
tice  given,  either  party  shall  persist  in  refusing  to  erect 
such  fence,  the  party  giving  the  notice  may  proceed  to  erect 


480  JUSTICES'  TREATISE. 

the  entire  fence  and  collect  by  law  the  one-half  of  the  cost 
of  such  fence  from  the  other  party,  and  shall  be  entitled  to 
a  lien,  as  is  provided  for  mechanics.  Gen.  Laws,  3037. 

SEC.  8.  All  partition  fences  separating  adjoining  inclo- 
sures  shall  stand  upon  the  line;  if  the  owner  of  land,  Avhen 
building  a  fence,  shall  fail  to  do  so,  and  when  told  to  put 
the  same  on  the  line  shall  refuse,  shall  subject  himself  to 
one-half  the  cost  of  its  removal  and  erection  in  the  right 
place.  Gen.  Laws,  3038. 

SEC.. 9.  The  respective  owners  or  lessees  of  lands  which 
now  are  or  hereafter  may  be  inclosed  with  fences,  shall 
keep  up  and  maintain  in  good  repair  all  partition  fences 
between  their  own  and  the  next  adjoining  inclosures,  in 
equal  shares,  so  long  as  both  parties  continue  to  occupy  or 
improve  the  same.  Gen.  Laws,  3039.'  The  last  four  sec 
tions  do  not  apply  to  Butte,  Amador,  Tuolumne,  San  Diego, 
Nevada,  Santa  Barbara,  San  Bernardino,  Colusa,  Placer, 
Yuba,  Trinity,  Shasta,  Klamath  and  Siskiyou. 

SEC.  10.  In  the  county  of  Contra  Costa,  where  one  of 
several  persons  owning  lands  adjoining  to  the  other  or 
others,  which  is  inclosed  by  one  fence,  and  either  desires 
that  a  partition  fence  shall  be  built,  he  shall  notify  the 
other  or  others,  and  each  shall  build  his  proportion  of  the 
fence;  on  failure  to  do  so  within  three  months  the  party 
giving  the  notice  may  build  the  fence  and  collect  from  the 
other  or  others  in  default,  by  law,  a  just  proportion  of  the 
cost  of  the  fence  together  with  costs  of  suit.  Partition 
fences  dividing  lands  shall  be  kept  in  repair  by  all  the 
parties  in  interest.  If  either  party  fails  to  repair  after 
five  days'  notice,  the  party  giving  the  notice  may  repair  and 
collect,  by  law,  from  the  others  a  due  proportion  of  the 
expense  of  repairs  and  costs  of  suit.  A  party  having  built 
or  paid  for  a  portion  of  a  partition  fence  shall  have  the 
right  to  remove  or  exact  pay  for  the  same,  when  the  fence 
shall  cease  to  be  a  partition  fence,  by  the  removal  of  the 
outside  inclosure.  Gen.  Laws,  3049. 

SEC.  11.  In  San  Bernardino,  Colusa,  Shasta',  Tehama, 
Placer  and  Yuba  counties,  also  in  Tuolumne,  provisions 
are  similar  to  the  preceding  section. 


FEERIES  AND   TOLL-BRIDGES.  481 

CHAPTER     L. 

FERRIES  AND  TOLL-BRIDGES. 

SECTION  1.  At  common  law,  no  bridge  or  ferry  could  be 
erected  so  near  another,  bound  by  law  to  be  provided  with 
attendance,  crafts,  etc.,  as  to  draw  away  its  profits.  Upon 
the  principle  that  such  prohibition  was  for  the  public  good, 
it  was  deemed  unreasonable  to  suffer  another  to  interfere 
with  the  profits  of  a  bridge  or  ferry  already  established  at 
considerable  expense,  perhaps,  to  the  owner,  as  such  inter 
ference  was  discouraging  to  undertakings  of  the  sort,  and 
consequently  disadvantageous  to  the  public.  It  is  a  decis 
ion  of  the  common  law,  that  if  a  ferry  be  erected  so  near  an 
ancient  ferry  on  the  same  stream  as  to  draw  away  its  cus 
tom,  it  is  a  nuisance  to  the  owner  of  the  old  one,  and  in 
such  a  .case  an  action  lies  by  the  owner  of  the  first  ferry 
against  the  owner  of  the  new  one,  although  the  latter  be  a 
free  ferry — for  the  injury  to  the  plaintiff  is  not  in  the  gains 
of  the  defendant  but  in  drawing  away  the  travel  and  thereby 
diminishing  his  tolls  and  the  value  of  his  franchise.  In  this 
state,  no  person  has  a  right  to  establish  a  bridge  or  ferry  so 
as  to  receive  compensation  for  the  same,  unless  authorized 
to  do  so  by  license  issued  by  order  of  the  board  of  super 
visors.  A  free  ferry  or  bridge  may  be  established,  provided 
there  is  no  regularly-established  bridge  or  ferry  within  one 
mile,  immediately  above  or  below.  When,  however,  the 
board  of  supervisors  has  granted  a  license  authorizing  the 
erection  of  a  public  bridge  or  the  establishment  of  a  public 
ferry,  then  no  other  bridge  or  ferry,  whether  free  or  not, 
can  be  established  within  one  mile  immediately  above  or 
below  it,  unless  in  the  opinion  of  the  board  of  supervisors  it 
is  required  by  the  public  convenience.  A  free  bridge  or 
ferry,  in  the  immediate  vicinity  of  one  regularly  licensed, 
would  be  more  injurious  than  the  establishment  of  one  reg 
ularly  licensed  to  receive  toll;  as  it  would  render  the  estab 
lished  crossing  of  no  value  whatever,  while  the  other  would 
only  divide  the  profits.  To  say  that  the  legislature  only 
intended  to  prohibit  licensed  bridges  and  ferries  and  not 
61 


482  JUSTICES'  TREATISE. 

those  which  are  free,  would  be  to  defeat  the  very  object  the 
legislature  had  in  view.  The  fact  that  a  free  bridge  or  ferry 
so  established,  within  one  mile  of  one  already  licensed, 
issued  certificates  for  one  dollar  by  which  the  holder  was 
entitled  to  passage  for  one  month,  does  not  constitute  the 
holder  a  joint  stockholder  in  the  bridge  or  ferry.  It  is  but 
another  mode  of  payment  and  a  mere  evasion  of  the  law, 
and  subjects  the  owners  to  punishment  for  a  misdemeanor 
under  the  statute.  6  Cal.  594-598. 

SEC.  2.  Before  an  action  can  be  brought  for  interference 
with  a  ferry  privilege — a  vested  right — the  plaintiff  must 
fully  comply  with  the  laws  in  relation  thereto.  5  Cal.  47. 

SEC.  3.  The  act  of  1855  concerning  ferries  does  not  con 
fer  on  the  party  an  exclusive  privilege,  and  he  cannot  main 
tain  a  civil  action  against  any  one  who  intrudes  upon  or 
injures  the  franchise ;  it  confers  only  a  limited  right  upon 
the  party  for  the  protection  of  which  provision  is  made  by 
indictment.  Where  a  new  right  is  introduced  by  statute, 
the  party  complaining  of  its  violation  is  confined  to  the 
statutory  remedy,  so  far  as  the  courts  of  common  law  are 
concerned.  If,  however,  the  right  existed  at  common  law, 
the  remedy  provided  by  statute  is  merely  cumulative.  Fer 
ry  privileges  are  created  by  statute  of  this  state,  and  no 
remedy  by  an  action  on  the  case  is  given — the  former  act 
providing  a  remedy  by  a  civil  action  having  been  repealed. 
Courts  of  chancery,  however,  can  give  relief.  7  Cal.  129. 


CHAPTER    LI. 

FOEMEE     EECOVEEY. 

SECTION  1.  To  plead  a  former  judgment  in  bar,  it  must 
appear  not  only  that  it  was  upon  the  same  cause  of  action 
but  between  the  same  parties.  9  Cal.  130. 

SEC.  2 .  A  plea  of  a  former  suit  pending  is  no  bar  to  an 
action  where  the  complaint  in  the  former  suit  is  so  defect 
ive  that  a  judgment  rendered  thereon  would  be  a  nullity. 
9  Cal.  338. 

SEC.  3.     The  judgment  of  a  court  of  competent  jurisdic- 


FOKMER  BECOYEKY.  483 

tion  directly  upon  the  point  is,  as  a  plea,  a  bar;  or,  as  evi 
dence,  conclusive  between  the  same  parties  upon  the  same 
matter  directly  in  question  in  another  court.  7  Col.  252. 

SEC.  4.  The  former  judgment  of  a  court  having  jurisdic 
tion  over  the  subject  matter  and  the  parties,  is  a  bar  to  a 
second  suit  upon  the  same  cause  of  action  between  the 
same  parties  or  their  privies,  and  is  conclusive,  not  only 
upon  every  question  involved  therein  and  thereby  deter 
mined,  but  also  as  to  every  other  matter  which  the  parties 
might  have  litigated  in  the  cause  and  which  they  might 
have  decided.  25  Cal.  266. 

SEC.  5.  Where  the  cause  and  object  of  both  actions  are 
the  same,  a  judgment  in  the  prior  bars  the  subsequent  suit. 
When  the  cause  or  object  of  the  actions  are  different, 
though  the  point  in  dispute  is  the  same  in  both,  the  prior 
judgment  is  no  bar  to  the  subsequent  action,  but  the 
verdict  is  matter  of  evidence  to  prove  the  point.  Thus, 
when  in  an  action  of  replevin,  no  damages  were  recovered 
for  detention  of  the  property,  such  damages  might  be  re 
covered  in  a  subsequent  suit.  10  Cal.  521. 

SEC.  6.  An  action  brought  by  an  agent,  in  his  own 
name,  for  a  trespass,  in  taking  and  converting  coin  from 
the  possession  of  the  agent,  in  which  action  the  jury  found 
that  the  coin  belonged  to  the  principal,  and  gave  only 
nominal  damages,  is  no  bar  to  an  action  by  the  principal 
for  such  coin.  12  Cal.  140.  It  would  present  a  strange 
anomaly  if  a  suit  were  brought  by  one  and  defeated  on  the 
ground  that  the  property  belonged  to  another,  and  then  the 
other  sued,  if  the  last  suit  were  defeated  on  the  ground 
that  the  first  suit  concluded  the  last  plaintiff.  12  Cal.  142. 

SEC.  7.  It  is  well  settled  that  the  doctrine  of  resjudicata 
applies  only  to  matters  distinctly  put  in  issue  upon  the  rec 
ord,  and  directly  determined  by  the  court  or  jury.  It  is 
not  sufficient  that  the  point  in  dispute  was  raised  by  the 
pleadings  in  a  former  action;  it  must  have  been  judicially 
passed  upon  and  determined,  or  the  judgment  in  such  ac 
tion  cannot  be  relied  upon  as  a  bar.  In  the  present  case 
we  have  no  doubt  that  the  breach  of  the  warranty  might 
have  been  relied  upon,  by  way  of  recoupment,  to  mitigate 
the  recovery  in  a  former  suit,  but  we  are  equally  clear  that 


484  JUSTICES'  TREATISE. 

it  was  not  available  as  a  complete  defense,  for  which  pur 
pose  alone  it  seems  to  have  been  set  up  in  the  answer  and 
relied  upon  at  the  trial.  It  is  unnecessary  to  determine 
whether  the  answer  was  sufficient  to  entitle  the  plaintiffs  to 
recoup  the  damages  resulting  from  the  breach  of  the  con 
tract;  we  are  clearly  of  opinion  that  by  the  instruction  of 
the  court  the  whole  matter  was  excluded  from  the  consid 
eration  of  the  jury.  They  were  told  that  the  rights  of  the 
parties  depended  upon  other  considerations,  of  which  alone 
they  were  permitted  to  inquire.  That  they  did  not  con 
sider  any  question  in  relation  to  the  warranty  and  could 
not  legally  have  done  so  under  the  instruction,  we  think 
does  not  admit  of  serious  controversy.  We  see  no  error  in 
the  record  and  the  judgment  must  therefore  be  affirmed. 
15  Col.  425,  426. 

SEC.  8.  The  issues  passed  on  in  a  former  suit  may  be 
ascertained  by  an  inspection  of  the  judgment  roll;  and  if 
that  fails  to  disclose  all  the  facts  necessary  to  a  complete 
determination  of  the  question,  a  resort  may  be  had  to  ex 
trinsic  evidence.  The  question  whether  a  former  judgment 
is  erroneous  is  not  material;  for  an  erroneous  judgment, 
until  reversed,  is  as  binding  and  conclusive  upon  parties 
and  privies  as  one  in  which  no  error  is  found.  25  CaL  266. 

SEC.  9.  In  order  to  render  the  former  judgment  effectual 
as  a  bar,  it  must  appear  that  the  matters  litigated  were  sub 
mitted  on  their  merits  and  actually  passed  on  by  the  court; 
for  if  the  trial  went  off  on  a  technical  defect  or  because  the 
cause  of  action  had  not  yet  accrued  or  because  of  the  tem 
porary  disability  of  the  plaintiff  to  sue,  or  the  like,  the 
judgment  will  be  as  bar  to  a  future  action.  25  Cal.  266. 

SEC.  10.  A  judgment  upon  demurrer  is  not  always  a  bar 
to  a  subsequent  action.  It  is  so  only  where  it  determines 
the  whole  merits  of  the  case.  Where  the  answer  shows 
that  the  demurrer  was  to  the  validity  of  the  contract  which 
gave  rise  to  the  claim  and  this  averment  is  found  to  be  true 
as  alleged,  by  the  judge  at  nisi  prius  upon  inspecting  the 
record  of  the  case,  the  judgment  upon  demurrer  is  a  bar  to 
the  suit.  5  Cal.  428,  429. 


FRAUD. 


485 


CHAPTER    LII. 
FBAUD. 


SECS. 
1 

2-  4 
5-  7 
8-15 


DEFINITION- 

CONVEYANCES —  LEASES 

TRUSTS 

AGREEMENTS  NOT  IN  WRITING 

REQUISITES  OF  SALE  OF  GOODS, 

ETC 16-19 

IMMEDIATE  DELIVERY  AND  CON 
TINUED  POSSESSION  ..  ..20-28 


SECS. 

POSSESSION  BY  MORTGAGE 29-31 

To  HINDER  AND  DELAY  CRED 
ITORS  32-34 

INTENT  35-36 

"LANDS "AND  "CONVEYANCE," 

DEFINED 37 

As  BETWEEN  THE  PARTIES 38-40 

PROOF  OF..,  41-43 


Definition. 

SECTION- 1.  Statute  of  Frauds. — The  name  commonly  giv-  ' 
en  to  the  statute  (29  Car.  II,  C.  3),  entitled  "An  act  for 
prevention  of  frauds  and  perjuries."  Fraudulent  convey 
ances  received  early  attention;  and  the  statutes  13  Eliz.  (C. 
5)  and  27  Eliz.  (C.  4),  made  perpetual  by  29  Eliz.  (C.  18), 
declared  all  conveyances  made  to  defraud  creditors,  etc.,  to 
be  void.  These  statutes  have  been  generally  adopted  in  the 
United  States  as  the  foundation  of  all  the  state  statutes  on 
the  subject.  The  following  is  the  statute  of  California. 
The  decisions  of  the  supreme  court,  in  connection  there 
with,  here  given,  will  be  sufficiently  explanatory: 

Ccn  vey  anc  es — Leases . 

SEC.  2.  No  estate  or  interest  in  lands,  other  than  for 
leases  for  a  term  not  exceeding  one  year,  nor  any  trust  or 
power  over  or  concerning  lands  or  in  any  manner  relating 
thereto,  shall  hereafter  be  created,  granted,  assigned,  sur 
rendered  or  declared,  unless  by  act  or  operation  of  law  or 
by  deed  or  conveyance,  in  writing,  subscribed  by  the  party 
creating,  granting,  assigning,  surrendering  or  declaring,  the 
same  or  by  his  lawful  agent  thereunto  authorized  by  writ 
ing.  Gen.  Laws,  3150. 

SEC.  3.  A  sale  of  growing  crops,  the  product  of  period 
ical  planting  and  cultivation,  does  not  come  within  the  pro 
visions  of  the  statute  of  frauds  relating  to  sales  of  an  in 
terest  in  real  estate,  and,  therefore,  though  not  in  writing, 
is  valid.  23  Cal.  65. 


486  JUSTICES'  TREATISE. 

SEC.  4.  A  lease  for  two  years  executed  by  the  lessees 
and  by  an  agent  of  the  lessors — but  who  had  no  written  au 
thority  to  do  so — is  within  the  sixth  section  of  the  statute  of 
frauds,  and  therefore  invalid.  2  Cal.  604. 

Trusts. 

SEC.  5.  The  preceding  section  shall  not  be  construed  to 
affect  in  any  manner  the  power  of  a  testator  in  the  disposi 
tion  of  his  real  estate  by  a  last  wrill  and  testament,  nor  to 
prevent  any  trust  from  arising  or  being  extinguished  by 
implication  or  operation  of  law.  Every  contract  for  the 
leasing  for  a  longer  period  than  one  year  or  for  the  sale  of 
any  lands  or  any  interest  in  lands,  shall  be  void,  unless  the 
contract  or  some  note  or  memorandum  thereof  expressing 
the  consideration  be  in  writing,  and  be  subscribed  by  the 
party  by  whom  the  lease  or  sale  is  to  be  made.  Every  in 
strument  required  to  be  subscribed  by  any  person  under 
the  preceding  section,  may  be  subscribed  by  the  agent  of 
such  party,  lawfully  authorized.  Nothing  contained  in  this 
chapter  shall  be  construed  to  abridge  the  powers  of  courts 
to  compel  the  specific  performance  of  agreements  in  cases 
of  part  performance  of  such  agreements.  Gen.  Laws,  3151- 
3154. 

SEC.  6.  All  deeds  of  gifts,  all  conveyances  and  all  trans 
fers  or  assignments,  verbal  or  written,  of  goods,  chattels  or 
things  in  action,  made  in  trust  for  the  use  of  the  person 
making  the  same,  shall  be  void  as  against  the  creditors 
existing  or  subsequent  of  such  person.  Gen.  Laws,  3155. 

SEC.  7.  Where  the  vendor  of  personal  property  acquired 
his  title  to  the  property  in  fraud  of  the  creditors  of  his 
vendor,  his  vendee,  for  a  valuable  consideration  and  with 
out  notice  of  the  original  fraud,  is  not  affected  by  the  taint 
of  his  title.  The  title,  although  originally  fraudulent,  is 
cured  by  the  subsequent  conveyance  to  an  innocent  party. 
12  Cal.  484. 

Agreements  not  in  Writing. 

SEC.  8.  In  the  following  cases,  every  agreement  shall  be 
void,  unless  such  agreement,  or  some  note  or  memorandum 
thereof,  expressing  the  consideration,  be  in  writing,  and 
subscribed  by  the  party  charged  therewith : 


FRAUD.  487 

1st.  Every  agreement  that  by  the  terms  is  not  to  be  per 
formed  within  one  year  from  the  making  thereof. 

2d.  Every  special  promise  to  answer  for  the  debt,  default 
or  miscarriage,  of  another. 

3d.  Every  agreement,  promise  or  undertaking,  made  upon 
consideration  of  marriage,  except  mutual  promises  to  marry. 
Gen.  Laws,  3156. 

SEC.  9.  The  twelfth  section  of  our  statute  of  frauds  is 
substantially  borrowed  from  the  fourth  section  of  the  Eng 
lish  statutes  of  29  Charles  II.  12  Cal.  552. 

SEC.  10.  Where  the  consideration  of  a  contract  is  ex 
pressed  in  writing,  although  fictitious,  it  satisfies  the  statute 
of  frauds.  If  there  be  no  consideration,  that  fact  may  be 
urged  specially  as  a  good  ground  of  defense.  2  Cal.  462. 

SEC.   11.      There  is   no   conclusion  of   fraud,  springing 

from  a  want  of  a  consideration  in  a  deed  which  will  enable 

a  stranger  to  attack  it ;  and  although  it  is  a  circumstance, 

'  among  others,  from  which  fraud  may  be  inferred,  still  the 

party  must  bring  himself  within  the  statute.     7  Cal.  139. 

SEC.  12.  By  the  statute  of  frauds,  a  promise  to  pay  the 
debt  of  a  third  person  must  be  in  writing,  though  to  be 
performed  within  one  year.  2  Cal.  156. 

SEC.  13.  A  parol  promise  to  pay  for  the  improvements 
^upon  land,  is  not  within  the  statute  of  frauds.  2  Cal.  493. 

SEC.  14.  The  general  rule  is  thus  stated  :  The  terms 
"original"  and  "collateral"  promise,  though  not  used  in 
the  statute,  are  convenient  enough  to  distinguish  between  the 
cases  where  the  direct  and  leading  object  of  the  promise  is 
to  become  the  surety  and  guarantor  of  another's  debt,  and 
those  where,  although  the  effect  of  the  promise  is  to  pay 
the  debt  of  another,  yet  the  leading  object  of  the  under 
taker  is  to  subserve  or  promote  some  interest  or  purpose  of 
his  own.  The  former,  whether  made  before  or  after  or  at 
the  same  time  with  the  promise  of  the  principal,  is  not 
valid,  unless  manifested  by  evidence  in  writing ;  the  latter, 
if  made  on  good  consideration,  is  unaffected  by  the  statute, 
because,  although  the  effect  of  it  is  to  release  or  suspend 
the  debt  of  another,  yet  that  is  not  the  leading  object  on 
the  part  of  the  promisor.  9  Cal.  334.  The  interest  which 
a  promisor  has  in  the  performance  of  a  contract  by  another, 


488  JUSTICES'  TREATISE. 

or  the  benefit  which  he  may  derive  thereby,  cannot  deter 
mine  his  liability.  That  liability  arises  from  the  character 
of  the  promise,  and  the  interest  in  the  principal  contract  or 
the  benefit  to  be  gained  by  its  performance  become  matters 
of  consideration  only  as  they  may  serve  to  determine  that 
character.  9  Cal.  335. 

SEC.  15.  The  provision  of  the  statute  of  frauds,  which 
requires  the  promise  to  pay  the  debt  of  another  to  be  in 
writing,  expressing  the  consideration,  does  not  apply  to  the 
promise  of  A  to  pay  money  he  owes,  by  contract  with  B,  to 
C.  This  is  A's  debt;  the  mere  direction  in  which  he  pays 
it  not  altering  the  character  of  the  contract  from  an  original 
obligation.  12  Cal.  314. 

Requisites  of  Sale  of  Goods,  etc. 

SEC.  16.  Every  contract  for  the  sale  of  any  goods,  chat 
tels  or  things  in  action,  for  the  price  of  two  hundred  dol 
lars  or  over,  shall  be  void,  unless  : 

1st.  A  note  or  memorandum  of  such  contract  be  made  in 
writing,  and  be  subscribed  by  the  parties  to  be  charged 
therewith. 

2d.  Unless  the  buyer  shall  accept  or  receive  part  of  such 
goods  or  the  evidences,  or  some  of  them,  of  such  things  in 
action. 

3d.  Unless  the  buyer  shall  at  the  time  pay  some  part  of 
the  purchase-money.  Gen.  Laws,  3157. 

Part  performance  will  take  a  case  out  of  the  statute  of 
frauds.  2  Cal.  492. 

SEC.  17.  "Whenever  any  goods  shall  be  sold  at  auction 
and  the  auctioneer  shall  at  the  time  of  sale  enter  in  a  sale- 
book  a  memorandum  specifying  the  nature  and  price  of  the 
property  sold,  the  terms  of  the  sale,  tjie  name  of  the  pur 
chaser  and  the  name  of  the  person  on  whose  account  the 
sale  is  made,  such  memorandum  shall  be  deemed  a  note  of 
the  contract  of  sale  within  the  meaning  of  the  last  section. 
Gen.  Laws,  3158. 

SEC.  18.  The  memoranda  required  by  the  statute  of 
frauds  to  be  entered  by  auctioneers  in  their  sale-books,  are 
the  substitutes  for  contracts  reduced  to  writing  and  signed 
by  the  parties,  and  must  be  made  at  the  very  time  of  the 


FRAUDS.  489 

% 

sale,  or  the  vendee  will  not  be  bound  by  the  contract :  so  held 
in  a  case  where  the  sale  at  auction  took  place  in  the  fore 
noon  and  the  memorandum  was  not  made  by  the  auctioneer 
before  the  evening  of  the  same  day.  A  memorandum  en 
tered  in  the  name  of  the  person  on  whose  account  the  sale 
was  made  but  one  hour  after  the  sale,  would  not  bind  the 
vendor.  The  auctioneer  ceases  to  be  the  mutual  agent  after 
the  sale  is  closed.  1  Cal.  415,  416. 

SEC.  19.  A  sale  of  land  at  auction,  where  no  note  or 
memorandum  of  sale  is  made  by  the  auctioneer  and  no 
writing  exists  between  the  parties,  is  void  by  the  statute  of 
frauds.  6  Cal.  75. 

Immediate  Delivery  and  Continued  Possession, 

SEC.  20.  Every  sale  made  by  a  vendor  of  goods  and 
chattels,  in  his  possession  or  under  his  control,  and  every 
assignment  of  goods  and  chattels,  unless  the  same  be  ac 
companied  by  an  immediate  delivery  and  be  followed  by  an 
actual  and  continued  change  of  possession  of  things  sold  or 
assigned,  shall  be  conclusive  evidence  of  fraud  as  against 
the  creditors  of  the  vender  or  the  creditors  of  the  person 
making  such  assignment  or  subsequent  purchasers  in  good 
faith.  The  term  "  creditors,"  as  used  in  this  section,  shall 
be  construed  to  include  all  persons  who  shall  be  creditors 
of  the  vendor  or  assignor  at  any  time  while  such  goods  and 
chattels  shall  remain  in  his  possession  or  under  his  control. 
Gen.  Laics,  3159,  3160. 

SEC.  21.  Delivery,  within  the  statute  of  frauds,  must  be 
such  as  the  nature  of  the  case  admits.  Wine  may  be  de 
livered  by  giving  up  the  keys  of  the  wine-cellar ;  and  the 
consent  of  a  party  upon  the  spot  is  sufficient  possession  of 
a  column  of  granite,  which  by  its  weight  and  magnitude 
is  not  susceptible  of  any  other  delivery,  and  when  the  de 
clared  intention  is  to  take  possession.  A  bill  of  sale  of 
timber  and  materials  of  great  bulk,  or  marking  the  timber, 
has  been  held  such  a  delivery  and  change  of  possession  as 
the  subject-matter  reasonably  admitted.  Taking  a  bill  of 
parcels  and  an  order  from  the  vendor  on  the  store-keeper 
for  the  goods,  and  going  and  marking  them  with  the  initials 
of  the  vendee's  name ;  taking  a  bill  of  parcels  and  an  order 
62 


490  JUSTICES'  TKEATISE. 

on  the  warehouseman  and  paying  the  price;  the  communi 
cation  of  the  vendor's  order  on  a  wharfinger  or  warehouse 
man  for  delivery  and  assented  to  by  him ;  the  change  of 
mark  on  bales  of  goods  in  a  warehouse  by  direction  of  the 
parties;  taking  the  vendee  within  sight  of  ponderous  arti 
cles,  such  as  logs  lying  within  a  boom  and  showing  them  to 
him ;  selecting  and  marking  of  sheep  by  the  vendee — have 
severally  been  held  to  be  sufficient  delivery. 

SEC.  22.  The  rule  under  our  statute  as  to  the  delivery  of 
possession  of  mortgaged  personal  property  was  not  in 
tended  to  be  more  strict  than  that  held  by  the  English  and 
United  States  courts  as  the  proper  construction  of  the  stat 
ute  of  frauds.  Ch.  29,  Sec.  11.  The  words  of  the  rule  are 
not  to  receive  an  unreasonable  construction.  Although  de 
livery  be  requisite  in  cases  of  sales,  yet  what  will  constitute 
a  delivery  must  depend,  in  some  measure,  upon  the  charac 
ter  of  the  article  sold  and  the  peculiar  circumstances  of  the 
case.  Mr.  Parsons  on  Contracts  (vol.  2,  p.  328)  says:  "It 
may  be  said,  in  general,  that  a  delivery  must  be  a  transfer 
of  possession  and  control  made  by  the  seller  with  the  pur 
pose  and  effect  of  putting  the  goods  out  of  his  hands.  This 
is  a  sufficient  delivery  whatever  its  form.  Hence  it  may  be 
constructive,  as  by  delivering  the  key  of  a  warehouse  or 
making  an  entry  in  the  books  of  the  warehouse-keeper,  or 
delivery  with  indorsement  of  a  bill  of  lading  or  even  of  a 
receipt,  or  without  even  such  when  the  goods  are  bulky 
and  difficult  qf  access,  as  a  quantity  of  timber  floating  in  a 
boom,  or  a  mass  of  granite  or  a  large  stack  of  hay."  Kenfs 
Com.  (Yol.  4,  500)  holds  that  the  consent  of  the  parties  upon 
the  spot  is  a  sufficient  possession  of  a  volume  of  granite, 
which  by  its  weight  and  magnitude  was  not  susceptible  of 
any  other  delivery  and  was  taken  by  the  eyes  and  declared 
intention.  14  Col.  386,  387. 

SEC.  23.  Hay  cut  on  land  in  possession  of  B.  lies  in  three 
fields  of  about  one  hundred  and  fifty  acres,  in  swaths,  cocks, 
winrows  and  stacks.  Plaintiffs  mowed  it  and  boarded  with 
B.  B.  mortgages  the  hay  to  plaintiffs  for  wrork  and  they 
cease  to  board  with  B.,  whose  dwelling  is  separated  from 
these  fields  !by  a  fence.  Plaintiffs  proceed  to  gather  and 
stack  the  hay  until  the  levy  of  an  execution  on  it  eight  days 


FRAUDS.  491 

afterwards  by  defendant  as  B.'s  property.  The  delivery 
was  sufficient. 

SEC.  24.  The  continued  change  of  possession  required 
by  the  statute  of  frauds,  after  a  sale  of  goods  and  chattels, 
in  order  to  validate  the  sale  must  be  actual  and  not  con 
structive.  4  Cal  290. 

SEC.  25.  The  statute  of  frauds  requires  the  sale  to  be 
accompanied  by  an  immediate  delivery,  and  to  be  followed 
by  an  actual  and  continued  possession  of  the  property  sold. 
The  language  of  the  statute  is  exceedingly  strong  and  the 
intention  manifest.  The  change  of  possession  from  the 
vendor  to  the  vendee  must  not  only  be  actual  but  also  con 
tinued.  8  Cal.  517. 

SEC.  26.  The  growing  crop,  while  growing  and  until 
ready  for  the  harvest,  is  also  unaffected  by  the  fifteenth 
section  of  the  statute  in  relation  to  the  sale  of  goods  and 
chattels  in  the  possession  and  under  the  control  of  the  ven 
dor.  A  growing  crop,  until  ready  for  the  harvest,  cannot 
by  itself  become  the  object  of  delivery,  and  can  only  be 
delivered  into  the  possession  of  the  vendee  by  delivering  to 
him  the  possession  of  the  land  also  of  which  it  is  a  part. 
We  do  not  consider  that  chattels  thus  situated  fall  within 
the  rule  prescribed  by  the  statute  in  relation  to  the  imme 
diate  delivery  and  actual  and  continued  change  of  posses 
sion  of  goods  and  chattels  in  the  possession  and  under  the 
control  of  the  vendor,  at  least  until  nature  has  prepared 
them  for  delivery  to  the  reaper.  .  To  so  construe  the  statute 
would  make  it  an  absolute  interdiction  upon  the  sale  of  grow 
ing  crops,  unless  the  vendor  is  willing  to  abandon  the  pos 
session  of  his  farm  to  the  vendee  at  the  same  time.  Grow 
ing  crops,  in  respect  to  delivery,  are  not  unlike  ships  and 
cargoes  at  sea,  of  which  delivery  cannot  be  made  until  they 
reach  port.  Davis  vs.  McDonald,  37  Cal.  640. 

SEC.  27.  Delivery  of  possession  of  personal  property 
may  be  either  actual  or  constructive;  and  actual  delivery  is 
contemplated  by  the  statute,  unless  such  delivery  be  im 
possible  or  extremely  inconvenient,  in  which  case  a  sym 
bolical  delivery  is  sufficient.  Doak  vs.  Brubaker,  1  Nev. 
218. 

SEC.  28.     Where  the  property  is  in  the  possession  of  a 


492  JUSTICES'  TREATISE. 

bailee  also,  actual  delivery  is  not  necessary;  the  only  deliv 
ery  which  could  be  made  would  be  to  give  an  order  for  it 
or  deliver  the  receipt  or  obtain  the  recognition  of  the  bailee, 
but  when  in  the  possession  of  an  agent  or  servant  a  dif 
ferent  rule  prevails.  1  Nev.  218. 

Possession  of  Mortgagee. 

SEC.  29.  No  mortgage  of  personal  property  hereafter, 
made,  shall  be  valid  against  any  other  person  than  the  par 
ties  thereto,  unless  possession  of  the  mortgaged  property 
be  delivered  to  and  retained  by  the  mortgagee:  provided, 
that  a  mortgage  upon  growing  crops,  executed,  acknowl 
edged  and  recorded,  like  mortgages  upon  real  estate,  shall  be 
valid  as  against  third  parties  without  such  delivery  of  pos 
session,  but  the  lien  of  such  mortgage  shall  cease  as  against 
subsequent  purchasers,  unless  possession  of  such  crops 
whe^i  harvested  be  delivered  to  the  mortgagee  as  required 
in  other  cases  of  mortgage  of  personal  property.  Gen. 
Laivs,  3161. 

SEC.  30.  A  mortgage  stipulating  for  the  enjoyment  of 
the  possession  of  personal  properiy  by  the  mortgagors 
until  breach  of  the  condition,  is  invalid  under  the  statute  of 
frauds  as  to  all  persons  except  the  parties  to  it.  If  the 
mortgagee  took  immediate  and  actual  possession  of  the 
property  in  the  absence  of  any  contract  concurrent  or  sub 
sequent  to  the  mortgage,  conferring  any  greater  authority 
than  that  contained  in  the  mortgage,  he  cannot  claim  by 
virtue  of  such  possession,  because  the  covenants  of  the 
mortgage  show  that  he  was  not  entitled  to  such  possession. 
Under  such  a  mortgage  the  mortgagee  cannot  claim  the 
right  of  possession  as  against  a  sheriff  who  has  attached 
the  property  as  that  of  the  mortgagors.  5  Cal.  322. 

.  SEC.  31.  Nothing  contained  in  the  twentieth  and  twenty- 
second  sections  shall  be  construed  to  apply  to  contracts  of 
bottomry,  respondentia,  nor  assignments  or  hypothecations 
of  vessels  or  goods  at  sea,  or  in  foreign  states  or  without 
this  state:  provided,  the  assignee  or  mortgagee  shall  take 
possession  of  such  vessel  or  goods  as  soon  as  may  be  after 
the  arrival  thereof  within  this  state.  Every  instrument  re 
quired  by  any  of  the  provisions  of  this  act  to  be  subscribed 


FRAUDS.  493 

• 

by  any  party  may  be  subscribed  by  the  lawful  agent  of  such 
party.     Gen.  Laws,  3162,  3163. 

Hinder  and  Delay  Creditors. 

SEC.  32.  Every  conveyance  or  assignment,  in  writing  or 
otherwise,  of  any  estate  or  interest  in  lands  or  in  goods  in 
action,  or  of  any  rents  or  profits  issuing  therefrom,  and 
every  charge  upon  lands,  goods  or  things,  in  action  or  upon 
the  rents  and  profits  thereof,  made  with  the  intent  to  hin 
der,  delay  or  defraud,  creditors  or  other  persons  of  their 
lawful  suits,  damages,  forfeitures,  debts  or  demands,  and 
every  bond  or  other  evidence  of  debt  given,  suits  com 
menced,  decree  or  judgment  suffered,  with  the  like  intent 
as  against  the  persons  hindered,  delayed  or  defrauded, 
shall  be  void.  Gen.  Laws,  3164. 

SEC.  33.  The  statute  13  Eliz.  (Ch.  5)  is  the  foundation 
of  the  acts  on  the  subject  of  conveyances  to  hinder,  delay 
or  defraud,  creditors  in  the  several  states,  and  has  been 
substantially  incorporated  into  our  law.  This  statute  de 
clares  all  gifts,  conveyances  and  alienations,  of  real  or 
personal  estate,  wherekp  creditors  may  be  delayed  or  de 
frauded,  void  as  against  such  creditors ;  but  judicial  inter 
pretation  has  determined  that  creditors  at  the  time  of  the 
transaction  are,  alone,  intended  by  the  statute.  Thus,  a 
settlement  made  after  marriage,  and  therefore  considered 
voluntary,  will  be  maintained  against  subsequent  credit 
ors  :  provided,  the  settler  was  not  indebted  at  the  time  he 
made  it.  This  general  rule  must,  however,  be  qualified  so 
as  to  exclude  cases  of  positive  fraud.  It  is  not  necessary 
that  a  man  should  be  actually  indebted  at  the  time  he  en 
ters  into  a  voluntary  settlement  to  make  it  fraudulent ;  if 
he  do  so  with  a  view  to  his  being  indebted  at  a  future  time, 
it  is  equally  a  fraud  and  ought  to  be  set  aside.  As  against 
subsequent  creditors,  then,  a  conveyance  even  if  voluntary 
is  not  void,  unless  fraudulent  in  fact :  that  is,  unless  made 
with  the  view  to  future  debts;  though  evidence  of  an  intent 
to  defraud  existing  creditors  is  deemed  -suificient  prima  fa- 
tie  evidence  of  fraud  against  subsequent  creditors.  13  Col. 
71,  72. 

SEC.  34.     Every  grant  or  assignment  of  any  existing  trust 


494  JUSTICES'  TREATISE.  . 

in  land,  goods  or  things  in  action,  unless  the  same  shall  be 
in  writing,  subscribed  by  the  person  making  the  same  or  by 
his  agent  lawfully  authorized,  shall  be  void.  Every  con 
veyance,  charge,  instrument  or  proceeding,  declared  to  be 
void  by  the  provisions  of  this  act,  as  against  creditors  or 
purchasers,  shall  be  equally  void  as  against  the  heirs,  suc 
cessors,  personal  representatives  or  assigns,  of  such  credit 
ors  or  purchasers.  The  question  of  fraudulent  intent  in 
all  cases  arising  under  the  provisions  of  this  act  shall  be 
deemed  a  question  of  fact  and  not  of  law,  nor  shall  any 
conveyance  or  charge  be  adjudged  fraudulent  as  against 
creditors  or  purchasers  solely  on  the  ground  that  it  was 
not  founded  on  a  valuable  consideration.  The  provisions 
of  this  act  shall  not  be  construed  in  any  manner  to  affect  or 
impair  the  title  of  a  purchaser  for  a  valuable  consideration, 
unless  it  shall  appear  that  such  purchaser  had  previous  no 
tice  of  the  fraudulent  intent  of  his  immediate  grantor  or  of 
the  fraud  rendering  void  the  title  of  such  grantor.  Gen. 
Laws,  3165-3188. 

Intent. 

SEC.  35.  .Fraud  may  be  commuted  when  there  is  no 
fraudulent  intention  actually  existing  in  the  mind  of  the 
party  at  the  time  the  act  was  done.  In  other  words,  the 
law  irresistibly  draws  the  conclusion  of  fraud  from  certain 
established  facts,  without  any  further  inquiry  into  the  real 
motives  of  the  party.  7  Cal.  355. 

SEC.  36.  To  impeach  a  sale  upon  the  ground  of  fraud, 
the  fraudulent  intent  of  both  the  seller  and  the  purchaser 
must  be  shown.  The  declarations,  as  well  as  the  conduct 
of  the  seller,  before  the  sale,  are  competent  testimony  to 
show  this  fraudulent  intent  on  his  part.  8  Cat.  112,  113. 

"Lands"  and   "Conveyances,"  Defined. 

SEC.  37.  The  term  "lands,"  as  used  in  this  act,  shall  be 
construed  as  coextensive  in  meaning  with  lands,  tenements 
and  hereditaments,  and  the  terms  "estate"  and  "interest" 
in  lands,  shall  be  construed  to  embrace  every  estate  and 
interest,  present  and  future,  vested  and  contingent,  in  lands 
as  above  denned.  Gen.  Laws,  3169.  The  term  "convey 
ance,"  as  used  in  this  act,  shall  be  construed  to  embrace 


FRAUDS.  495 

every  instrument  in  writing,  except  a  last  will  and  testa 
ment,  whatever  may  be  its  form,  and  by  whatever  name  it 
may  be  known  in  law,  by  which  any  estate  or  interest  in 
lands  is  created,  aliened,  assigned  or  surrendered.  Gen. 
Laws,  3170. 

As  between    the  Parties. 

SEC.  38.  Crops,  growing  upon  land,  are  not  goods  and 
chattels  within  the  meaning  of  the  statute  of  frauds,  and 
will  pass  by  deed  or  conveyance  from  the  very  necessity  of 
the  case,  as  they  are  not  susceptible  of  manual  delivery 
until  harvested  and  reduced  to  actual  possession.  6  Cal. 
664. 

SEC.  39.  A  sale  of  property,  however  fraudulent  as  to 
creditors,  is  good  as  between  the  parties  to  the  sale.  5  Cal. 
368. 

SEC.  40.  In  a  case  between  two  purchasers  of  the  same 
property  from  the  same  fraudulent  vendor,  where  the  only 
question  regards  the  person  who  must  sustain  the  loss,  if 
both  purchasers  were  equally  in  fault  or  equally  innocent, 
then  the  first  purchaser  is  entitled  to  the  property.  8  Cal. 
560.  -• 

Proof  of. 

SEC.  41.  It  is  never  to  be  presumed  that  a  party  has 
committed  a  fraud,  and  where  fraud  is  alleged  for  the  pur 
pose  of  depriving  him  of  a  right,  the  facts  sustaining  it 
must  be  clearly  made  out.  21  Cal.  503. 

SEC.  42.  What  the  law  has  tainted  with  fraud,  in  its 
inception,  can  lose  none  of  its  concomitants  by  passing 
through  a  multiplicity  of  hands.  6  Cal.  140. 

SEC.  43.  An  action  founded  upon  a  fraud  cannot  be 
maintained  by  a  party  to  the  fraud.  26  Cal.  310. 


496  JUSTICES'  TREATISE. 

CHAPTER    LIII. 

CONFUSION    OF    GOODS. 

SECTION  1.  If  one  man  mixes  his  corn  or  flour  with  that 
of  another,  and  they  were  of  equal  value,  the  latter  must 
have  the  given  quantity;  but  if  articles  of  different  value 
are  mixed,  producing  a  third  value  the  aggregate  of  both, 
and  through  the  fault  of  the  person  mixing  them  the  other 
party  cannot  tell  what  was  the  value  of  his  property,  he 
must  have  the  whole.  9  Cal.  660. 

SEC.  2.  But  it  will  be  observed  that  when  articles  of 
different  values  are  mixed,  producing  a  third  value,  the 
innocent  party  is  only  allowed  the  whole  in  case  he  cannot 
tell  the  original  value  of  his  property.  Even  in  case  of  such 
a  mixture,  if  the  original  value  of  the  property  mixed  can 
be  ascertained,  the  party  can  only  claim  that  value,  except 
the  mixture  be  willfully  made  with  intent  to  injure,  or  from 
gross  negligence.  9  Cal.  660. 

SEC.  3.  Where  an  agent  confounds  his  principal's  prop 
erty  with  his  own,  it  devolves  upon  the  agent  to  distinguish 
his  own  portion,  otherwise  the  principal  may  take  the 
whole.  9  Cal.  661. 

SEC.  4.  A  party  is  not  compelled  to  pay  for  improve 
ments  that  he  has  never  authorized  and  which  originated  in 
tort.  If  every  man  ougfrt  to  have  the  fruits  of  his  own 
labor,  that  principle  can  apply  only  to  a  case  where  the 
labor  has  been  lawfully  applied,  and  the  other  party  has 
voluntarily  accepted  those  fruits,  without  reference  to  any 
exercise  of  his  own  rights.  For,  if  in  order  to  avail  himself 
of  his  own  vested  rights  and  use  his  own  property  it  be 
necessary  to  use  the  improvements  wrongfully  made  by 
another,  it  would  be  strange  to  hold  that  a  wrong  should 
prevail  against  a  lawful  exercise  of  the  right  of  property. 
In  case  of  a  tortious  confusion  of  goods,  the  common  law 
gives  the  sole  property  to  the  other  party.  7  Cal.  9, 


INJURIES  TO  PERSON  AND  CHARACTER,   ETC.  497 

CHAPTER     LIV. 

INJURIES  TO  PEESON  AND  CHARACTER— MALI 
CIOUS  PEOSECUTION. 

SECTION  1.  Injuries  to  Person  and  Character. — Cases  from 
New  York  cited  to  show  that,  though  there,  as  here,  the  stat 
ute  provides,  a  claim  for  injuries  to  the  person  shall  not  be 
joined  with  a  claim  for  injuries  to  character,  yet  if  the  facts 
of  the  whole  case  or  transaction  embrace  an  injury  to  the 
person  and  also  an  injury  to  the  character,  then  plaintiff 
may  recover  in  one  action  for  the  compound  injury.  Jones 
vs.  Steamship  Cortez,  17  Cal.  487. 

SEC.  2.  In  order  that  a  party  in  an  action  for  malicious 
prosecution  may  avail  himself  of  the  defense  of  advice  of 
counsel,  he  must  show  that  such  advice  was  given  upon  a 
full  and  fair  statement  of  the  facts  within  his  knowledge.  7 
Cal  257,  258. 


CHAPTER     LV. 

INJURY  TO  PERSONAL  PROPERTY. 

i 

SECTION  1.  Personal  property  is  divided  int*  two  kinds: 
Property  in  possession  and  property  in  action,  and  the 
owner  may  have  as  absolute  a  property  in,  and  be  as  well 
entitled  to,  such  thing  in  action  as  to  things  in  possession. 
7  Cal.  203. 

SEC.  2.  The  general  rule  is,  that  every  man  may  do  as 
he  chooses  with  his  own  property,  provided  he  does  not 
injure  another's.  But  .there  is  another  rule  as  well  estab 
lished,  which  is,  that  a  man  must  so  use  his  own  property 
as  not  to  injure  his  neighbor's.  This  last  rule,  however, 
does  not  make  a  man  responsible  for  every  injury  which 
may  arise  to  another  from  the  use  which  the  first  may  make 
of  his  property.  It  would  be  an  intolerable  hardship  to 
hold  a  man  responsible  for  unavoidable  accidents  which 
may  occur  to  his  property  by  fires  or  casualties  or  acts 
beyond  his  control,  though  others  are  likewise  injured. 
The  degree  of  negligence  which  will  subject  the  owner  to 
63 


498  JUSTICES'  TREATISE. 

liability  to  third  persons  in  such  cases  has  been  settled  by 
repeated  decisions.  10  Cal\  417. 

SEC.  3.  The  degree  of  care  which  a  party  who  con 
structs  a  dam  across  a  stream  of  water  is  bound  to  use, 
is  in  proportion  to  the  extent  of  the  injury  which  will  be 
likely  to  result  to  third  persons,  provided  it  should  prove 
insufficient.  It  is  not  enough  that  the  dam  is  sufficient  to 
resist  ordinary  floods,  for  if  the  stream  is  occasionally 
subject  to  great  freshets,  those  must  likewise  be  guarded 
against;  and  the  measure  of  care  required  in  such  cases  is 
that  which  a  discreet  person  would  use  if  the  whole  risk 
were  his  own.  In  a  case  where  the  plaintiff  gave  evidence 
that  the-defendant  was  the  possessor  of  a  saw  mill  and*  dam 
above  the  plaintiff's  works  and,  by  means  of  the  dam,  had 
raised  a  large  body  of  water,  about  a  mile  in  length  and 
varying  in  width  from  a  few  rods  to  half  a  mile ;  and  that 
the  dam  gave  way  and  let  down  the  whole  body  of  water 
upon  the  plaintiff's  works  below  and  which  swept  away  and 
destroyed  his  property  to  a  large  amount;  and  at  the  time 
the  dam  gave  way  there  had  been  no  unusual  fall  of  rain — 
the  court  held  that  the  defendant  was  subject  to  the  maxim : 
Sic  utere  tuo  ut  alienum  non  Icedas;  and,  to  comply  with  the 
requisition  of  the  common  law,  it  was  the  duty  of.  the  de 
fendant  t<f  have  used  ordinary  care  and  diligence  in  making 
repairs  to  his  dam  or  in  drawing  off  the  water  from  his 
pond,  to  prevent  injuries  to  the  plaintiff's  furnace.  If  the 
defendant  did  not  use  this  care  and  diligence,  he  was  guilty 
of  negligence  and  liable  for  consequential  damages,  but  he 
was  npt  liable  for  inevitable  accident.  And  if  the  dam  were 
to  break  without  any  negligence  or  through  inevitable  acci 
dent,  it  would  be  the  duty  of  the  party  to  repair  it  and  stop 
the  injury  as  soon  as  practicable.  10  Cal.  417,  418. 

SEC.  4.  This  is  an  action  for  injuries  to  a  garden,  occa 
sioned  by  the  breaking  of  a  reservoir.  On  the  trial  of  the 
case  the  court  instructed  the  jury,  in  substance,  that  to 
entitle  the  plaintiff  to  recover  it  must  appear  that  the 
breaking  of  the  reservoir  resulted  from  the  gross  negligence 
of  the  defendants.  This  instruction,  considered  by  itself, 
was  no  doubt  erroneous,  but  the  court  proceeded  to  explain 
what  was  meant  by  gross  negligence  in  such  a  manner  that 


INJURY  TO  PERSONAL  PROPERTY.  499 

the  jury  could  not  have  been  misled.  They  were  told  that 
the  defendants  must  have  taken  the  same  care  of  their 
reservoir  and  the  water  in  it,  as  they  would  have  done, 
being  prudent  men,  had  the  garden  of  the  plaintiff  been 
their  property,  and  that  otherwise  they  had  been  guilty  of 
gross  negligence,  and  were  liable  in  damages.  We  under 
stand  the  law  to  be  well  settled  that  the  measure  of  care 
required  in  such  cases  is  that  which  a  discreet  person  would 
use  if  the  whole  risk  were  his  own.  The  conduct  of  the 
defendant  must  be  viewed  with  reference  to  the  caution 
which  a  prudent  man  would,  under  the  given  circumstances, 
have  observed.  This  is  the  rule  laid  down  in  Hoffman  vs. 
Tuohimne  County  Water  Company  (7  Cal.  413),  and  in  Wolf 
vs.  St.  Louis  Water  Company  (7  Cal.  541).  17  Cal.  98. 

SEC.  5.  A  vessel  in  the  harbor  of  San  Francisco,  moored 
in  the  usual  track  of  bay  and  river  steamers,  should  set  a 
light  and  keep  a  watch  in  a  dark  night,  or  she  cannot 
recover  damages  for  an  injury  sustained  by  being  run  into 
by  a  steamer,  where  there  was  neither  gross  negligence  nor 
intentional  wrong  on  the  part  of  the  steamer.  The  want  of 
such  watch  and  light  is  to  be  deemed  negligence  per  se,  and 
the  court  should  instruct  the  jury  in  such  case  to  find  a  ver 
dict  in  favor  of  the  defendant.  1  Cal.  459. 

SEC.  6.  A  plaintiff  suing  for  an  injury  from  collision 
must  be  faultless.  But  the  neglect  of  the  injured  vessel  to 
rig  in  her  jib-boom,  as  required  by  the  port  regulations, 
will  not  bar  the  action,  if  it  be  shown  that  such  neglect  did 
not  cause  the  collision,  although  it  may  have  increased  the 
'  injury.  2  Cal  24. 

SEC.  7.  When  a  vessel  is  properly  in  charge  of  a  licensed 
pilot,  the  owner  is  not  liable  for  damages  which  may  ensue 
from  the  negligence  or  misconduct  of  the  pilot.  Under  our 
statute,  however,  the  responsibility  of  taking  a  position  or 
berth,  for  a  vessel  in  port,  rests  upon  the  master  of  the 
vessel  or  upon  the  harbor  master,  and  therefore  the  owner 
is  not  exempt  from  liability  for  injuries  committed  by  taking 
an  improper  berth,  although  such  berth  may  have  been 
selected  by  the  pilot  who  brought  the  vessel  into  port.  2 
Cal  24. 

SEC.  8.     In  an  action  for  an  injury  to  the  plaintiff's  cart 


500  JUSTICES'  TEEATISE. 

or  coach,  or  horses,  by  negligently  driving  against  them, 
the  plaintiff's  own  driver  or  coachman  is  not  a  competent 
witness  for  him,  without  a  release.  And  there  is,  in  prin 
ciple,  no  difference  between  the  case  where  the  master  is 
plaintiff  and  where  he  is  defendant.  The  negligence  of  the 
servant  in  either  case  defeats  the  master.  7  Col.  256., 

SEC.  9.  A  party  in  the  actual  possession  of  cattle  at  the 
.time  of  the  injury  is  entitled  to  maintain  an  action  for  any 
injury  to  them  while  in  his  possession.  9  Cal.  58. 

SEC.  10.  A  railroad  company  is  not  liable  for  damages 
caused  by  fire  from  sparks  from  their  engine,  unless  neg 
ligence  is  proven  by  the  plaintiff.  7  Cal.  340. 

SEC.  11.  A  municipal  corporation  is  not  liable  for  'the 
destruction  of  a  building,  in  pursuance  of  the  directions  of 
its  officers,  where  no  statute  exists  creating  such  liability. 
So  fold,  in  a  case  where  the  building  of  the  plaintiff  was 
blown  up  bj  the  directions  of  the  alcalde  and  several  mem 
bers  of  the  ayuntamiento  of  San  Francisco,  during  a  con 
flagration,  for  the  purpose  of  staying  its  progress,  and 
where  it  appeared  that  the  destruction  of  the  building  by 
fire  was  not  inevitable.  1  Cal.  355. 


CHAPTER    LVI. 

INJURIES  TO  THE  PEESON. 

• 

SECTION  1.  On  this  subject  the  case  of  Kramer  vs.  Mar 
ket-street  Eailroad  Company  is  explicit.  The  points  decided 
are: 

1st.  That  a  civil  action  for  damages  for  the  death  of  a 
person,  per  se,  cannot  be  maintained  by  any  one  at  common 
law. 

2d.  That  in  this  state,  a  civil  action  for  damages  for  the 
death  of  a  person  can  be  maintained  only  by  the  adminis 
trator  or  executor  of  the  deceased. 

An  act  of  the  legislature,  passed  April  26th,  1862,  provides 
for  compensation  for  causing  death  by  wrongful  act,  neg 
lect  or  default.  The  eleventh  section  of  the  practice  act— 
which  provides  that  "the  father,  or  in  case  of  his  death  or 


INJURIES  TO  THE  PERSON.  501 

desertion  of  his  family  the  mother,  may  maintain  an  action 
for  the  injury  or  death  of  a  child,  and  a  guardian  for  the  in 
jury  or  death  of  his  ward  " — does  not  create  a  right  of  action 
where  none  existed  before,  but  merely  designates  the  per 
sons  by  whom  an  action  for  causes  therein  mentioned, 
which  then  existed  or  might  thereafter  be  created  by  stat 
ute,  should  be  brought.  At  the  time  the  practice  act  was 
passed,  the  death  of  a  person  constituted  no  cause  of  action, 
and  the  eleventh  section  of  that  act,  so  far  as  it  designates 
the  parties  by  whom^an  action  for  the  death  of  a  person  may 
be  brought,  is  repealed  by  the  act  of  1862,  which  provides 
that  "every  such  action  shall  be  brought  by  and  in  the 
names  of  the  personal  representatives  of  such  deceased  per 
son."  The  words  "personal  representatives,"  as  used  in 
that  act,  mean  the  administrator  or  executor  of  the  de 
ceased,  and  not  the  heir  or  next  of  kin.  Here  the  plaintiff 
sues  as  father  [of  'the  child  killed]  or  sole  Heir  of  the 
deceased  person. 

SEC.  2.  Where  in  an  action  brought  by  a  passenger  of  a 
stage-coach  against  the  owners  thereof  for  injuries  sustained 
by  reason  of  the  upsetting  of  the  coach,  it  appears  that  the 
coach  at  the  time  of  the  accident  was  driven  by  the  servant 
or  agent  of  the  owner,  the  rule  in .  such  cases  is  that  the 
principal  is  liable  only  for  simple  negligence,  and  that  ex 
emplary  damages  cannot  be  imposed  upon  him.  7  Cal.  120. 

SEC.  3.  The  rule  of  law  regulating  the  obligation  be 
tween  master  and  servant  or  contractor  and  workman,  is 
that  the  latter  is  liable  for  all  accidents  occurring  in  the 
course  of  the  employment  which  are  not  induced  by  the 
carelessness  or  improper  conduct  of  the  employer.  In 
other  words,  the  master  is  bound  to  use  reasonable  care 
and  diligence  to  prevent  accident  or  injury,  and  if  he  does 
not,  he  will  be  responsible  for  the  damages.  .  6  Cal.  210. 

SEC.,  4.  If  a  party  be  employed  to  do  a  lawful  act,  and 
in  doing  it  he  commit  a  public  nuisance,  his  employer  is 
not  liable.  Thus,  where  the  defendants  contracted  with  A 
to  fill  in  the  earth  over  a  drain  which  was  constructed  for 
them  across  a  portion  of  the  highway,  from  their  house  to 
the  common  sewer,  and  A  having  filled  the  drain  left  the 
earth  so  heaped  up  above  the  level  of  the  highway  as  to 


502  JUSTICES'  TKEATISE. 

constitute  a  public  nuisance,  in  consequence  of  which  the 
plaintiff  in  driving  along  the  road  sustained  personal  injury, 
for  which  he  brought  his  action ;  and  a  few  days  previous 
to  the  accident,  and  before  the  completion  of  the  work,  one 
of  the  defendants  had  seen  the  earth  heaped  up  on  a  por 
tion  of  the  drain,  but  there  was  no  evidence  that  either  of 
the  defendants  had  interfered  with  or  exercised  any  control 
over  the  work,  the  court  held  that  there  was  no  evidence  to 
go  to  the  jury  of  the  defendants'  liability.  8  Col.  492. 

SEC.  5.  The  party  employing  has  the  selection  of  the 
party  employed,  and  it  is  reasonable  that  he  who  has  made 
choice  of  an  unskillful  or  careless  person  to  execute  his 
orders  should  be  responsible  for  any  injury  resulting  from 
the  want  of  skill  or  want  of  care  of  the  person  employed ; 
but  neither  the  principle  of  the  rule  nor  the  rule  itself  can 
apply  to  a  case  where  the  party  sought  to  be  charged  does 
not  stand  in*  the  character  of  employer  to  the  party  by 
whose  negligent  act  the  injury  has  been  occasioned.  8 
Col.  491. 

SEC.  6.  Where  a  man  is  employed  in  doing  a  job  or 
piece  of  work  with  his  own  means  and  his  own  men,  and 
employs  others  to  help  him  or  to  execute  the  work  for  him 
and  under  his  control,  he  is  the  superior,  who  is  responsi 
ble  for  their  conduct,  no  matter  whom  he  is  doing  the  work 
for.  To  attempt  to  make  the  primary  principal  or  employ 
er  responsible  in  such  cases  would  be  an  attempt  to  push 
the  doctrine  of  respondeat  superior  beyond  the  reason  on 
which  it  is  founded.  8  Gal.  492,  493.  " 

SEC.  7.  The  doctrine  is,  that  a  person  who  undertakes 
the  erection  of  a  building  or  other  work  for  his  own  benefit, 
is  not  responsible  for  injuries  to  third  persons  occasioned 
by  the  negligence  of  a  person  or  his  servant,  who  is  actu 
ally  engaged  in  executing  the  whole  work  under  an  inde 
pendent  employment  or  a  general  contract  for  that  purpose. 
8  Cal  493. 

SEC.  8.  Thus,  where  a  city  had  entered  into  a  contract 
with  F,  to  grade  a  certain  road,  and  F  made  a  contract  with  E 
to  do  all  the  blasting  of  rocks  required,  and  in  blasting  sev 
eral  fragments  of  rock  were  thrown  into  the  house  of  the 
plaintiff,  producing  injury  to  his  family  and  property;  it 


INJUEIES  TO   THE   PEKSON.  503 

was  held,  that  the  contractor,  F,  was  the  agent  or  servant  of 
the  corporation,  and  that  the  city  was  not,  in  consequence, 
liable.  8  Gal.  493. 

SEC.  9.  As  a  general  rule,  no  one  can  be  held  responsi 
ble  as  principal  who  has  not  the  right  to  choose  the  agent 
from  whose  act  the  injury  follows.  8  Cal.  493. 

SEC.  10.  The  distinction  as  to  the  liability  of  a  party, 
where  he  engages  a  contractor  to  erect  structures  on  his 
own  premises,  and  when  he  engages  such  contractor  to  erect 
them  on  the  premises  of  another,  does  not  rest  on  any  just 
principle.  If  the  enterprise  undertaken  be  a  lawful  one, 
and  be  intrusted  to  competent  and  skillful  architects,  there 
is  no  just  reason  why  liability  should  attach  to  the  project 
or  for  injuries  occurring  in  its  progress,  any  more  if  such 
enterprise  be  executed  on  his  own  land  than  if  executed 
elsewhere.  If  a  man,  wishing  to  build  a  house  for  his  own 
use,  upon  his  own  premises,  lets  it  out  by  contract  to  an 
architect,  who  is  to  provide  all  materials,  and  deliver  it 
completed,  upon  no  just  principle  should  his  liability  be 
greater  than  if  he  undertook  the  building  of  a  similar  house 
upon  his  neighbor's  property  and  let  it  out  by  contract  in 
the  same  way.  If  the  structure  amount  to  a  nuisance — if 
the  injury  complained  of  arises,  not  from  its  negligent  or 
unskillful  construction,  but  from  the  -fact  that  it  is  con 
structed  at  all — then  liability  would  attach,  whether  the 
erection  be  made  under  his  own  supervision  and  control  or 
let  out  by  contract  to  others.  To  illustrate  this  position — 
if  the  owner  of  land  erect  a  dam,  or  permit  a  dam  to  be 
erected,  across  a  stream  running  through  'his  property,  by 
which  his  neighbor's  land  is  flooded,  he  is  liable  for  dam 
ages,  for  the  injury  results,  not  from  the  manner  in  which 
the  dam  is  erected,  but  from  the  fact  that  it  is  erected  at  all. 
He  has  used,  or  permitted  his  property  to  be  used,  to  the 
injury  of  others,  and  must  be  responsible.  But  if  no  injury 
follows  from  the  dam  itself,  and  its  construction  is  let  out 
by  contract,  there  is  no  reason  why  the  owner  should  be 
responsible  for  injuries  arising  from  the  negligence  or 
unskillfulness  of  the  contractors  during  the  progress  of  the 
work,  from  the  fact  that  it  is  a  structure  upon  his  own  land, 
if  such  liability  would  not  attach  to  him  if  the  structure 
were  on  the  land  of  another.  8  Cal.  496,  497. 


504  JUSTICES'  TREATISE. 

SEC.  11.  Parties  for  whom  work  contracted  for  is  under 
taken  must  see  to  it  before  acceptance  that  the  work,  as  to 
strength  and  durability  and  all  other  particulars  necessary 
to  the  safety  of  the  property  and  persons  of  the  third  par 
ties,  is  subjected  to  proper  tests  and  that  it  is  sufficient. 
By  acceptance  and  subsequent  use,  the  owners  assume  to 
the  world  the  responsibility  of  its  sufficiency,  and  to  third 
parties  the  liability  of  the  contractors  has  ceased  and  their 
own  commenced.  8  Cal.  498. 

SEC.  12.  Where  parties  employed  architects,  reputed  to 
be  skilled  in  their  profession,  to  construct  at  a  designated 
point  on  a  creek,  a  dam  or  embankment,  of  certain  speci 
fied  dimensions,  capable  of  resisting  all  floods  and  freshets 
of  the  stream  for  a  period  of  two  years,  and  to  deliver  it 
completed  by  a  given  time,  and  before  the  embankment  was 
completed  it  was  broken  by  a  sudden  freshet,  and  a  large 
body  of  water,  confined  by  it,  rushed  down  the  channel  of 
the  stream,  carrying  away  and  destroying  in  its  course  the 
store  of  plaintiffs,  with  their  stock  of  merchandise.  The 
employers  exercised  no  supervision,  gave  no  directions, 
furnished  no  materials,  nor  had  they  accepted  the  work. 
Plaintiffs  having  brought  suit  to  recover  the  damage  sus 
tained  by  them  against  the  employers  and  contractors: 
Held  that  the  latter  alone  were  liable.  8  Cal.  469. 

SEC.  13.  A  county  is  not  liable  for  damages  for  injuries 
sustained  by  individuals,  caused  by  a  road  overseer  placing 
the  abutment  of  a  bridge  in  the  bed  of  a  stream  in  such  a 
manner  as  to  cause  the  waters  of  the  stream  to  flow  out  of 
their  usual  channel  and  wash  away  land  or  the  improve 
ments  thereon.  The  relation  between  a  county  and  its  road 
overseer  bears  no  resemblance  to  that  of  master  and  serv 
ant  nor  to  that  of  employer  and  employe".  If  an  abutment  to 
a  bridge  is  wrongfully  built  in  the  channel  of  a  stream  the 
remedy,  if  any  exists,  is  against  him  by  whom  the  injury 
was  committed.  25  Cal.  313. 

SEC.  14.  Intoxication  of  the  plaintiff  is  no  defense  to  an 
action  for  damages  for  injuries  caused  by  falling  through 
an  uncovered  hole  in  the  sidewalk  of  a  public  street.  If 
the  defendants  were  at  fault  in  leaving  an  uncovered  hole 
in  the  sidewalk  of  a  public  street,  the  intoxication  of  the 


INSOLVENT.  505 

plaintiff  cannot  excuse  such  gross  negligence.  A  drunken 
man  is  as  much  entitled  to  a  safe  street  as  a  sober  one  and 
much  more  in  need  of  it.  5  Cat,  461. 

SEC.  15.  Vindictive  damages  may  be  given  in  a  civil 
action  for  a  personal  injury  though  the  act  be  punishable 
by  a  criminal  prosecution.  2  Cal.  54. 

SEC.  16.  In  an  action  on  the  case  where  the  injury  of 
which  plaintiff  complains  has  resulted  from  the  negligence 
of  both  parties  without  any  intentional  wrong  on  the  part 
of  the  defendants,  the  action  cannot  be  maintained.  1 
Cal.  367. 


CHAPTER    LVII. 

INSOLVENT. 

SECTION  1.  Every  insolvent  debtor  may  be  discharged 
from  his  debts  as  hereinafter  provided,  upon  executing  an 
assignment  of  all  his  property,  real,  personal  or  mixed,  for 
the  benefit  of  all  his  creditors,  and  upon  compliance  with 
the  several  provisions  of  this  act :  provided,  said  assignment 
be  made  bona  fide  and  without  fraud.  The  district  court 
only  shall  have  original  jurisdiction  in  the  subject-matter 
herein  contained.*  Gen.  Laws,  3810. 

SEC.  2.  The  county  court  shall  have  original  civil  juris 
diction:  1st.  Of  actions  of  forcible  entry  and  detainer.  2d. 
Of  proceedings  in  cases  of  insolvency.  3d.  Of  actions  to 
prevent  or  abate  a  nuisance.  4th.  Of  all  such  special  cases 
and  proceedings  as  are  not  otherwise  provided  for.  Gen. 
Laws,  1262. 

SEC.  3.  A  discharge  under  the  insolvent  act,  to  be  a  bar 
to  actions  in  indebtedness  mentioned  in  the  petitioner's 
schedule,  must  be  in  strict  conformity  with  the  various  pro 
visions  of  the  law,  otherwise  it  is  void.  8  Cal.  44. 

SEC.  4.  A  joint  application  of  two  partners  for  the  bene 
fit  of  the  insolvent  act  is  void,  there  being  no  authority  for 
such  applications  in  the  act.  A  schedule  attached  to  such 
a  petition  showing  a  surrender  of  all  the  joint  property  of 

*  The  county  courts  have  now  original  jurisdiction  in  insolvent  cases. 

64 


506  JUSTICES'  TEEATISE. 

the  partners  is  not  a  compliance  with  the  act  which  re 
quires  a  surrender  of  all  the  property  of  the  insolvent.  8 
Cal.  44. 

SEC.  5.  An  assignment  of  property  to  a  creditor,  to  be 
sold  at  public  auction  and  the  proceeds  to  be  applied:  1st, 
in  payment  of  the  claim  of  such  creditor ;  and  2d,  the  resi 
due  to  be  distributed  pro  rata  among  the  creditors  of  such 
debtor,  is  not  in  contravention  of  the  statute  which  pro 
hibits  assignments  by  insolvent  debtors  for  the  benefit  of 
creditors.  If  such  creditor  were  insolvent  at  the  time  of 
the  assignment,  the  party  contesting  the  validity  of  the 
assignment  should  affirmatively  show  such  fact.  The  in 
solvency  could  not  be  presumed  from  the  language  of  the 
assignment.  12  Cal.  245. 

SEC.  6.  There  is  no  rule  of  law  which  prevents  a  debtor, 
in  insolvent  circumstances,  from  the  application  of  his  prop 
erty  to  the  payment  of  one  debt  rather  than  another.  10 
Cal.  494, 

SEC.  7.  "When  issuing  the  order  for  the  meeting  of  cred 
itors,  the  judge  shall  order  that  all  proceedings  against  the 
debtor  be  stayed :  provided,  however,  that  the  said  stay  of 
proceedings  shall  not  prevent  the  judge  who  shall  have 
granted  it  from  appointing  a  receiver  to  take  possession  of 
all  property  of  the  debtor  for  the  benefit  of  all  his  creditors, 
if  one  or  more  of  his  creditors,  his  agent  or  attorney  in  fact, 
shall  apply  for  such  appointment  and  swear  that  he  has 
reason  to  believe,  and  does  believe,  that  the  debtor  may 
avail  himself  of  the  stay  of  proceedings  and  keep  his  prop 
erty  from  his  creditors,  if  no  cause  sufficient,  in  the  judg 
ment  of  the  court,  shall  have  been  shown  why  the  debtor 
should  not  have  the  benefit  of  this  act,  and  shall  produce 
satisfactory  proof  of  the  facts  on  which  his  affidavit  is 
founded.  Gen.  Laivs,  3818. 

SEC.  8.  After  a  petition  and  schedule  in  insolvency  are 
filed,  the  control  and  dominion  of  the  insolvent's  property 
are  transferred  to  the  court,  and  a  creditor  cannot,  after 
such  filing,  certainly  not  after  the  order  staying  proceed 
ings,  seize  the  property.  The  order  operates  by  its  own 
force  from  its  date,  and  no  notice  need  be  given  of  it  to  a 
sheriff  with  a  writ  against  the  insolvent.  14  Cal.  47. 


INSOLVENT.  507 

SEC.  9.  If  the  accusation  of  fraud  brought  against  the 
debtor  is  declared  to  be  ill-founded  or  if  there  be  no  oppo 
sition  to  the  surrender  of  his  property,  and  provided  said 
surrender  has  been  made  according  to  the  provisions  of  this 
act,  said  debtor  shall  be  released  and  fully  discharged  from 
any  and  all  debts  until  then  contracted  and  contracted  after 
the  passage  of  this  act  and  from  every  judicial  proceeding 
relative  to  the  same :  provided,  always,  that  the  release  and 
discharge  authorized  by  this  section  shall  not  apply  to  debts 
and  liabilities  not  mentioned  and  set  forth  in  the  schedule, 
unless  the  insolvent  shall  declare  in  his  petition  that  it  is 
his  desire  to  be  discharged  from  all  his  debts  and  liabili 
ties,  and  that  he  has  described  them  according  to  the  best 
of  his  knowledge  and  recollection;  in  which  case  the  dis 
charge  and  release  authorized  by  this  section  shall  embrace 
all  his  debts  and  liabilities,  notwithstanding  they  may  have 
been  imperfectly  described  or  not  described  at  all.  Gen. 
Laws,  3833. 

SEC.  101  An  insolvent's  discharge,  under  the  statute, 
must  be  by  the  judgment  of  the  court  and  in  the  same 
county  in  which  the  proceeding  was  instituted.  Therefore, 
a  discharge  made  at  chambers  by  the  district  judge  in  the 
same  district  but  in  another  county  from  that  in  which  the 
proceeding  was  instituted,  is  no  defense  to  an  action  against 
the  insolvent.  6  Gal.  288. 

SEC.  11.  Whenever  an  insolvent  debtor  has  had  the 
benefit  of  this  act,  if  thereafter  at  any  time  it  is  made  to 
appear  that  he  has  concealed  any  part  of  his  property  or 
estate,  or  given  a  false  schedule  or  committed  any  fraud 
under  the  provisions  of  this  act,  it  is  hereby  declared  that 
he  has  forfeited  all  benefit  and  advantage  which  he  would 
otherwise  have  had  by  the  virtue  of  this  act,  and  he  cannot 
avail  himself  of  any  of  its  provisions  in  bar  to  any  claim 
that  may  be  instituted  against  him.  Gen.  Laws,  3841. 

SEC.  12.  A  decree  discharging  an  insolvent  debtor  from 
his  debts  will  not  afford  him  any  protection  in  bar  of  an 
action  brought  against  him  for  debts  contracted  prior  to 
such  decree,  if  it  is  made  to  appear  that  he  has  concealed 
any  part  of  his  property,  or  given  a  false  schedule  or  com 
mitted  any  fraud  in  procuring  such  discharge.  26  Col.  279. 


508  JUSTICES'  TREATISE. 

SEC.  13.  From  and  after  the  surrender  of  the  property 
of  the  insolvent  debtor,  all  property  of  such  insolvent  shall 
be  fully  vested  in  his  assignee  or  assignees,  for  the  benefit 
of  his  creditors,  and  shall  not  be  liable  to  be  seized,  at 
tached,  taken  or  levied  on,  by  virtue  of  any  execution 
issued  against  the  property  of  said  insolvent,  and  the 
assignees  who  may  be  appointed  shall  take  possession  of 
and  be  entitled  to  claim  and  recover  all  the  said  property, 
and  to  administer  and  sell  the  same  as  herein  provided. 
Gen.  Laws,  3843. 

SEC.  14.  The  debt  of  an  insolvent  bankrupt  is  due  in 
conscience  notwithstanding  his  discharge,  and  is  a  sufficient 
consideration  to  support  a  subsequent  express  promise  to 
pay.  A  verbal  promise  is  sufficient  at  common  law,  and 
there  is  nothing  in  our  statutes  which  changes  the  rule.  8 
Col.  85. 


CHAPTER     LVIII. 


INTEKEST. 


SECS.  SECS. 


WHAT  is , 1-3 

ACT  TO  REGULATE 4 

FOLLOWS  CONTEACT 5 

WHO  LIABLE  FOE  . .  6 


WHEN  RECOVERABLE 8-9 

AMOUNT  OF,  FOB  WHICH  JUDG 
MENT  SHOULD  BE  RENDEEED  10-11 
COMPUTATION  OF..,  .  12-13 


COMPOUND  INTEREST 7 

What  is. 

SECTION  1.  The  only  damages  which  the  law  allows  for 
the  detention  of  money  under  its  process  is  the  legal  inter 
est.  The  rule  of  damages  in  such  cases,  like  the  one  which 
obtains  in  actions  upon  promissory  notes,  is  a  fixed  and 
arbitrary  one.  The  actual  loss  occasioned  may  be  much 
greater  than  the  interest,  but  the  consequences  beyond  that 
the  law  does  not  inquire  into.  It  would  indeed  often  be 
impossible  to  determine  the  actual  damages  resulting  from 
the  detention  of  money ;  the  party  entitled  to  it  may  in  con 
sequence  have  been  compelled  to  borrow  on  ruinous  rates 
of  interest;  he  may  have  become  embarrassed  in  his  busi 
ness  operations,  ruined  in  credit  and  perhaps  driven  into 


INTEREST.  509 

insolvency;  but  of  these  possible  consequences  the  courts 
cannot  take  notice.  The  legal  interest  in  such  cases  is  the 
only  measure  which  can  be  followed  with  certainty  and,  as 
a  general  rule,  with  safety.  12  Gal.  111. 

SEC.  2.  The  law  does  not  tolerate  the  payment  of  more 
than  legal  interest  upon  money,  except  when  there  is  an 
express  written  agreement,  and  a  higher  rate  of  interest 
cannot  therefore  be  proved  as  a  measure  of  damages.  7 
Cal,  148. 

SEC.  3.  Though  interest  is,  as  a  general  rule,  not  recov 
erable  except  by  virtue  of  statutory  regulations,  a  small 
rate  may  be  allowed  in  some  cases  by  way  of  damages :  so 
held,  where  a  referee,  to  whom  a  cause  had  been  referred  by 
consent  of  parties,  had  allowed  the  plaintiff  interest  at  the 
rate  of  six  per  cent,  per  annum  on  the  balance  of  an  account 
found  due  to  him.  1  Cal.  422. 

Act  to  Regulate. 

SEC.  4.  The  act  to  regulate  interest  on  money  is  in  dero 
gation  of  the  common  law  and  must  be  strictly  construed. 
This  rule  of  construction,  applied  to  the  language  of  the 
second  section,  would  confine  its  provisions  to  contracts 
fixing  the  rate  of  interest.  According  to  the  common  accepta 
tion,  the  expression,  "rate  of  interest,"  has  reference  to  the 
percentage  or  amount  of  interest,  and  not  to  the  manner  of 
computing.  Kate  is  the  price  or  amount  stated  or  fixed  on 
anything.  That  it  was  used  in  this  sense  is  evident  from 
the  fact  that  it  was  thought  necessary  that  direct  authority 
for  the  compounding  of  interest  by  contract  should  be 
given  in  a  separate  section  of  the  act.  11  Cal.  19. 

Follows  Contract 

SEC.  5.  Interest  follows  a  contract,  according  to  the  law 
in  existence  at  the  time  and  place  of  the  contract  or  of  the 
performance  of  it.  A  subsequent  change  in  the  legal  rate 
of  interest  does  not  affect  the  contract.  It  is  error  to 
charge  six  per  cent,  interest  on  a  contract  made  before  the 
passage  of  our  statute  as  to  interest,  up  to  the  date  of  the 
statute,  and  ten  per  cent,  afterward.  14  CaL  171. 


510  JUSTICES'  TREATISE. 

Who  Liable  for. 

SEC.  6.  .  Where  an  administrator  rejects  a  legal  claim 
against  the  estate,  and  the  claimant  afterwards  sues  and 
recovers  judgment  therefor,  he  is  entitled  to  interest  from 
the  time  of  presenting  his  claim  to  the  administrator.  18 
Gal.  376. 

SEC.  7.  Interest  upon  interest  already  due  cannot  be 
allowed,  except  in  pursuance  of  a  written  engagement  of 
the  parties.  11  Col.  316. 

When  Recoverable. 

SEC.  8.  Where  the  account  presented  to  an  administra 
tor  for  allowance  contains  no  item  for  interest,  and  the  face 
of  the  paper  does  not  show  that  interest  results  necessarily 
from  the  facts  stated  as  constituting  the  claim,  interest  is 
not  recoverable.  14  Gal.  171. 

SEC.  9.  No  judgments  at  common  law  carry  interest.  2 
CaL  100. 

Amount  for  which  Judgment  should  be  Rendered. 

SEC.  10.  In  entering  a  judgment,  the  correct  rule  is  to 
add  the  interest  due  on  the  notes  up  to  the  time  of  the 
judgment  to  the  principal  and  enter  the  judgment  for  the 
gross  amount,  and  such  judgment  is  then  to  bear  the  same 
interest  as  the  notes,  until  paid.  The  theory  of  the  law  is 
not  that  the  party  recovers  the  particular  note  -or  chose  in 
action,  as  is  commonly  imagined,  but  that  he  recovers 
damages  for  the  non-performance  of  the  contract;  and  in 
case  of  failure  to  pay  money  due,  it  has  always  been  held 
that  the  true  measure  of  damages  was  the  amount  of  money 
owing  and  the  interest  which  was  agreed  upon.  Thus  the 
judgment  being  ascertained,  the  statute  steps  in  and  regu 
lates  whether  it  shall  bear  interest  and  at  what  rate.  5  CaL 
417. 

SEC.  11.  Interest  upon  a  note  should  be  calculated  at 
the  rate  expressed  therein  from  its  date  to  the  date  of  the 
judgment,  and  then  added  to  the  principal.  The  amount 
thus  found  due  makes  up  the  true  amount  for  which  judg 
ment  should  be  rendered.  11  CaL  316. 


INSTRUCTIONS.  511 

Computation   of. 

SEC.  12.  Upon  a  money  demand  bearing  interest,  on 
which  have  been  made  partial  payments  after  maturity,  the 
proper  method  of  computing  interest,  is  to  apply  the  pay 
ment  in  the  first  place  to  the  discharge  of  the  interest  then 
due ;  if  the  payment  exceeds  the  interest,  the  surplus"  goes 
towards  discharging  the  principal,  and  the  subsequent  in 
terest  is  to  be  computed  on  the  balance  of  the  principal 
remaining.  If  the  payment  be  less  than  the  interest,  the 
surplus  of  interest  must  not  be  taken  to  augment  the  prin 
cipal,  but  interest  continues  on  the  former  principal,  until 
the  period  when  the  payments,  taken  together,  exceed  the 
interest  due.  But  where  an  account  has  been  stated  by  the 
plaintiff,  charging  interest  both  on  the  debt  and  the  pay 
ments,  and  rendered  to  the  defendant,  and  no  objection 
made  thereto  within  a*  reasonable  time,  it  is  the  same  as 
an  agreement  that  the  interest  should  be  computed  accord 
ingly.  3  Col.  233. 

SEC.  13.  Where  the  dealings  of  the  parties  extended 
through  a  period  of  more  than  two  years,  during  which 
time  three  or  four  accounts  were  rendered  by  plaintiffs  to 
defendants  showing  balances,  in  all  of  which  accounts  and 
throughout  the  whole  of  which  time  the  parties  pursued  the 
same  mode  of  computing  interest,  this  mode  was  binding 
upon  them.  3  Col.  235. 


CHAPTER    LIX. 

INSTEUCTIONS. 

SECTION  1.  An  "  instruction  "  is  an  exposition  by  a  court 
to  the  jury  of  those  principles  of  law  which  the  latter  are 
bound  to  apply  in  order  to  render  such  a  verdict  as  will,  in 
the  state  of  the  facts  proved  at  the  trial  to  exist,  establish 
the  rights  of  the  parties  to  the  suit.  The  essential  idea  of 
an  "instruction"  is  that  it  is  authoritative  as  an  exposition 
of  the  law  which  the  jury  are  bound  by  their  oath  and  by 
moral  obligations  to  obey.  31  Barb.  (N.  Y.)  566. 


512  JUSTICES'  TREATISE. 

SEC.  2.  An  .instruction  should  be  a  clear  and  explicit 
statement  of  the  law  applicable  to  the  condition  of  the 
facts,  and  may  be  accompanied  by  such  comments  on  the 
evidence  as  are  necessary  to  show  its  application,  and  may, 
if  carefully  done,  include  an  opinion  on  the  weight  of  evi 
dence,  but  should  not  by  any  form  of  expression  or  intend- 
ment  decide  the  facts,  unless  it  be  in  the  entire  absence  of 
opposing  proof.  7  Wend.  160.  Erronegus  instructions  in 
matters  of  law  which  might  have  influenced  the  jury  in 
forming  a  verdict  are  a  cause  for  a  new  trial,  even  on  hypo 
thetical  questions,  on  which  no  opinion  can  be  required  to 
be  given,  but  this  rule  will  not  apply  when  the  instructions 
could  not  have  prejudiced  the  cause.  11  Wheat.  59;  6  Col. 
264.  The  above  definition  and  rules  are  deducible  from  the 
laws  and  decisions  which  follow: 

SEC.  3.  Judges  shall  not  charge  .juries  with  respect  to 
matters  of  fact,  but  may  state  the  testimony  and  declare  the 
law.  Const.  Cal.  Art.  IV,  Sec.  17. 

SEC.  4.  In  charging  the  jury,  the  court  shall  state  to 
them  all  matters  of  law  which  it  thinks  necessary  for  their 
information  in  giving  their  verdict ;  and  if  it  state  the  testi 
mony  of  the  case,  it  shall  also  inform  the  jury  that  they  are 
the  exclusive  judges  of  all  questions  of  fact.  The  court 
shall  furnish  to  either  party  at  the  time,  upon  request,  a 
statement  in  writing  of  the  points  of  law  contained  in  the 
charge,  or  shall  sign  at  the  time  a  statement  of  such  points 
prepared  and  submitted  by  the  counsel  of  either  party.  Pr. 
Ad,  165. 

SEC.  5.  Instructions  should  conform  to  the  pleadings 
and  the  facts.  Instructions  in  civil  and  criminal  cases 
should  be  drawn  with  reference  to  the  case  as  made  by 
the  evidence.  People  vs.  Roberts,  6  Cal.  214. 

SEC.  6.  An  instruction  of  the  court  to  the  jury  must  be 
adapted  to  the  facts  of  the  case.  People  vs.  Honshell,  10  Cal. 
83;  People  vs.  Byrnes,  30  Cal.  206. 

SEC.  7.  An  error  of  the  judge  in  violating  article  six, 
section  seven,  of  the  constitution  would  not,  under  all  cir 
cumstances,  be  sufficient  cause  for  reversal.  Prima  facie, 
it  would  be  sufficient;  but  no  more  importance  is  to  be 
attached  to  an  error  of  this  nature  than  any  other.  If  no 


INSTRUCTIONS.  513 

injury  could  possibly  have  resulted  from  it,  it  cannot  vitiate 
the  judgment.     People  vs.  Yarrab,  17  Cal.  166. 

SEC.  8.  The  constitution  prohibits  judges  from  charging 
juries  with  respect  to  matters  of  fact,  except  to  state  the 
testimony  and  declare  the  law  resulting  from  the  evidence. 
Ford  vs.  Chambers,  19  Cal.  143. 

SEC.  9.  An  instruction  to  the  jury  "to  find  for  the  de 
fendant,  as  plaintiff  has  failed  to  prove  a  redemption,"  is 
clearly  erroneous.  The  question  of  redemption  was  the 
main  point  in  issue.  Battersby  vs.  Abbott,  9  Cal.  565. 

SEC.  10.  When  facts  are  admitted  and  there  is  no  dis 
pute  in  regard  to  them,  and  the  law  upon  those  facts  de 
clares  the  transaction  fraudulent,  it  is  not  a  question  for 
the  jury.  The  court  in  such  case  may  direct  the  jury  how 
to  find,  and  may  set  aside  the  verdict  if  they  find  to  the 
contrary.  Chenny  vs.  Palmer,  6  Cal.  119. 

SEC.  11.  Where  the  answer  is  insufficient  as  a  denial  of 
the  allegations  in  the  complaint,  and  the  court  having  in 
structed  the  jury  to  find  for  plaintiff :  Held,  that  the  instruc 
tion  was  right — no  evidence  being  required  on  the  part  of 
plaintiff.  Kuhland  vs.  Sedgwick,  17  Cal.  123. 

SEC.  12.  When  certain  allegations  of  fact  in  the  com 
plaint  are  admitted  in  the  answer,  an  instruction  by  the 
court  to  the  jury  that  the  admitted  facts  will  be  taken  by 
them  as  true  and  that  they  will  so  find  for  the  plaintiff,  is 
not  an  instruction  to  the  jury  to  find  the  verdict  in  favor  of 
plaintiff,  except  as  to  the  facts  so  admitted.  Blood  vs.  Light, 
31  Cal.  115. 

SEC.  13.  Instructions  where  the  Evidence  is  Insufficient. — 
Where  there  is  only  such  slight  evidence  as  is  plainly  in 
sufficient  to  establish  a  point,  it  is  proper  for  the  court  to 
instruct  the  jury  to  that  effect  and  withdraw  it  from  their 
consideration.  Selden  vs.  Cashman,  20  Cal.  56;  People  vs. 
Dick,  24  Cal.  663. 

SEC.  14.  Convicting  Instructions. — If  the  court  gives  an 
instruction  correctly  stating  the  law,  and  afterwards  another 
nullifying  the  first,  the  judgment  will  be  reversed.  People 
vs.  Campbell,  30  Cal.  312. 

SEC.  15.     The  court  should  refuse  to   instruct  the  jury 
on  abstract  questions  of  law.     Fowler  vs.  Smith,  2  Cal.  39; 
65 


514  JUSTICES'  TEEATISE. 

Benham  vs.  Rowe,  2  Cal.  387;  Branger  vs.  Chevalier,  9  Cal. 
353. 

SEC.  16.  The  Court  should  Give  or  Refuse  Instructions  as 
asked  for. — The  court  should  give  or  refuse  instructions  to 
the  jury  as  asked  for,  and  though  the  phraseology  may  be 
modified  to  make  it  more  intelligible  yet  the  sense  must  not 
be  altered.  Conrad  vs.  Lindley,  2  Cal.  173;  Jamson  vs. 
Quivey,  5  Cal.  490;  Eussell  vs.  Amadore,  3  Cal.  400. 

SEC.  17.  Held,  that  where  an  instruction  asked  for  by 
defendant,  if  given  entire  would  have  been  erroneous,  the 
court  was  not  bound  to  separate  the  concluding  clause  and 
give  that  by  itself,  and  was  therefore  right  in  refusing  the 
instruction.  Smith  vs.  Richmond,  19  Cal.  476. 

SEC.  18.  The  facts  are  to  be  found  by  the  jury  from  the 
evidence,  and  it  is  error  for  the  court  in  its  charge  to 
assume  as  proven  a  fact  which  is  not  in  issue.  Caldwell  vs. 
Center,  30  Cal.  539. 

SEC.  19.  Judge  may  Read  from  Memoranda. — It  is  not 
error  for  the  judge,  in  stating  the  testimony  to  the  jury,  to 
read  a  memorandum  of  testimony  taken  by  another  person 
instead  of  using  his  own  minutes  or  making  the  statement 
from  recollection.  People  vs.  Boggs,  20  Cal.  432. 

SEC.  20.  If  an  instruction  be  refused  for  the  reason  that 
it  has  already  been  given  (Belden  vs.  Henriques,  8  Cal.  87), 
the  reason  of  the  refusal  should  be  stated  so  as  not  to  mis 
lead  the  jury.  People  vs.  Ramirez,  13  Cal.  172. 

SEC.  21.  It  is  not  error  to  refuse  an  instruction  asked 
when  the  same  has  already  been  given  in  substance.  Peo 
ple  vs.  King,  27  Cal.  507.  If  the  court  has  already  given 
the  law  correctly  to  the  jury  upon  a  given  point,  it  is  not 
error  to  refuse  a  second  instruction  upon  the  same  point. 
People  vs.  Williams,  32  Cal.  280. 

SEC.  22.  It  is  error,  after  the  jury  have  retired,  to  allow 
them  to  come  into  court  and  instruct  them,  in  the  absence 
of  the  parties  or  their  counsel.  Such  instructions  will  be 
considered  important  if  the  contrary  is  not  shown  from  the 
very  fact  that  the  jury  have  asked  for  them.  5  Cal.  148. 

SEC.  23.  After  a  cause  tried  in  a  justice's  court  has  been 
submitted  to  the  jury  and  they  have  retired  to  consider  of 
their  verdict,  it  is  not  irregular  in  the  justice,  at  the  request 
of  the  jury,  to  give  them  further  instructions  upon  +lie  law 


JUDGMENT. 


515 


of  the  case  if  the  parties  are  or  have  an  opportunity  of 
being  present.  13  Wend.  274. 

SEC.  24.  It  is  irregular  for  the  justice  to  go  to  the  jurors' 
room,  after  they  have  retired,  and  give  them  further  instruc 
tions;  if  such  are  required  it  must  be  done  in  open  court. 
2  Penn.  659. 

SEC.  25.  A  justice  is  not  bound  to  give  instructions  to  a 
jury;  if  he  gives  wrong  instructions  it  is  error.  16  Barb. 
96. 

SEC.  26.  A  judgment  rendered  by  a  justice's  jury  will  be 
reversed,  if  the  justice  has  instructed  the  jury  wrongly, 
though  the  verdict  be  for  the-  defendant  in  an  action  for  a 
penalty.  6  Hill,  326. 

SEC.  27.  TVhere  the  instructions  of  the  court,  though 
incorrect  in  law,  are  all  in  favor  of  the  defendant,  he  can 
not  complain  of  error.  5  Cal.  342. 


CHAPTER     LX. 


JUDGMENT. 


SECS. 

DEFINITION  OF 1-4 

Is  PKOPEETY 5 

WHEN  VALID 6-12 

BY  DEFAULT 13-22 

How  AND  WHEN  TO  BE  KENDEKED  23-26 
ON  JOINT  AND   SEVERAL  CON 
TRACTS  27-29 

SPECIFIC  CONTRACTS 30-31 

WHEN    CLAIM   EXCEEDS  JURIS 
DICTION  . .  32-35 


SECS. 

IN  CASES  OF  ARREST 36 

IN  EEPLEYTN 37 

OFFER  TO  ALLOW 38 

BY  CONFESSION 39-40 

FORM  OF  STATEMENT  AND  CON 
FESSION,  ETC 41-44 

COSTS  TAXED  IN 45-^6 

INTEREST  ON 47-48 

*LIEN  OF,  BY  JUSTICE 49 


Definition. 

SECTION  1.  A  judgment  is  the  decision  or  sentence  of  the 
law,  given  by  a  court  or  competent  tribunal,  as  the  result 
of  proceedings  instituted  therein  for  redress  of  an  injury. 
To  be  valid,  it  must  be  given  by  a  competent  judge  or 
court,  at  a  time  and  place  appointed  by  law  and  in  the 
form  it  requires.  7  Cal.  449. 

SEC.  2.     A  judgment  is  the  final  determination  of  the 


516  JUSTICES'  TREATISE. 

rights  of  the  parties  in  the  action  or  proceeding.  Pr.  Act, 
144 ;  Gen.  Laws,  5084. 

SEC.  3.  "A  judgment,"  says  the  statute,  "is  the  final 
determination  of  the  rights  of  the  parties  in  the  action  or 
proceeding";  and  the  rendition  of  the  judgment  is  the  con 
clusion  of  the  controversy.  Whatever  relates  to  the  merits 
is  merged  in  the  judgment  and  becomes  res  judicata;  and, 
if  there  are  issues  upon  which  the  judgment  is  not  conclu 
sive,  they  must  be  determined  in  a  different. action.  16  Col. 
382. 

SEC.  4.  A  judgment  is  a  debt  of  record,  and  the  parties 
to  it  are  called  judgment  creditor  and  judgment  debtor.  7 

Cal.  203. 

Is  Property. 

SEC.  5.  A  judgment  is  property — per  Burnett  Murray 
dissenting — (7  Cal.  203),  which  may  be  purchased  like  any 
other  property.  12  Cal.  262.  A  judgment  entered  on  the 
forfeiture  of  a  recognizance,  is  the  property  of  the  state.  12 

Cal.  50. 

When  Valid. 

SEC.  6.  If  any  part  of  the  entire  consideration  of  a  con 
tract  is  illegal,  the  whole  contract  is  void.  So,  if  an  entire 
judgment  be  composed  of  several  elements  and  one  or  more 
of  them  is  illegal,  the  whole  judgment  is  void,  as  against 
creditors.  7  Cal.  355 ;  8  Cal.  129. 

SEC.  7.  Where  a  cause  is  tried  before  a  justice  and  he 
hears  and  decides  the  matter  in  dispute  and  makes  a  mem 
orandum  on  a  piece  of  paper  of  W7hat  the  judgment  was 
which  he  had  concluded  on,  and  gave  such  a  memorandum 
to  his  clerk  or  friend  to  be  made  out  and  entered  on  his 
docket  in  form,  but  which  was  never  so  entered  nor  the  mem 
orandum  preserved,  there  is  no  valid  judgment.  Though 
the  judgment  need  not  be  in  precise  legal  form  in  order  to 
be  valid,  yet  it  must  be  entered  on  paper  and  the  evidence 
of  it  on  paper  be  preserved,  in  order  to  constitute  a  subsist 
ing  judgment.  2  Cliand.  (W'is.)  110. 

SEC.  8.  A  justice's  judgment,  not  signed  by  him,  is  bad. 
3  Midi.  (Gibbs)  207. 

SEC.  9.  Judgment  for  the  plaintiff,  generally,  without 
stating  against  whom,  is  sufficient  in  the  justice's  court  of 
New  Jersey.  1  Harr.  86. 


JUDGMENT.  517 

SEC.  10.  An  entry  by  a  justice,  that  "this  case,  for  the 
want  of  proof  to  sustain  the  plaintiff's  demand,  was  dis 
missed  at  the  plaintiff's  costs,"  was  held  to  be  a  judgment 
upon  the  merits  and  not  of  nonsuit.  2  Eng.  55. 

SEC.  11.  "I  give  judgment  with  the  jury,"  is  not  a  suffi 
cient  render  of  judgment  by  a  justice.  2  Penn.  848,  944. 

SEC.  12.  A  void  judgment  cannot  be  ratified.  10  Watts, 
118. 

By  Default.     . 

SEC.  13.  When  the  defendant  fails  to  appear  and  answer, 
judgment  shall  be  given  for  the  plaintiff,  as  follows: 

1st.  "When  a  copy  of  the  account,  note,  bill  or  other  ob 
ligation,  upon  which  the  action  is  brought  was  filed  with  the 
justice  at  the  time  the  summons  was  issued,  judgment  shall 
be  given,  without  further  evidence,  for  the  sum  specified  in 
the  summons. 

2d.  In  other  cases,  the  justice  shall  hear  the  evidence  of 
the  plaintiff  and  render  judgment  for  such  sum  only  as  shall 
appear  by  the  evidence  to  be  just,  but  in  no  case  exceeding 
the  amount  specified  in  the  summons.  Gen.  Laius,  5523. 

SEC.  14.  "Where  the  summons  has  been  duly  served,  a 
judgment  by  default  amounts  to  a  confession,  on  the  part 
of  the  defendants,  of  all  the  material  facts  in  the,  complaint. 
10  Cal.  441. 

SEC.  15.  The  allegations  of  a  complaint  are  confessed  by 
a  default.  11  Cal.  47. 

SEC.  16.  Where  an  administrator  does  not  set  up  his 
privileges  by  demurrer  or  answer,  but  suffers  judgment  to 
go  by  default,  it  is  a  confession  that  he  is  properly  sued. 
10  Cal.  555. 

SEC.  17.  A  justice  should  not  render  judgment  on  de 
fault  without  requiring  full  and  competent  proof  of  the 
plaintiff's  demand.  3  Wis.  736. 

SEC.  18.  A  justice  having  regularly  heard  a  cause,  ex 
parte,  in  the  defendant's  absence,  cannot  afterwards  open 
the  matter  and  proceed  to  a  rehearing  without  the  plaint 
iff's  consent.  He  is  bound  to  enter  judgment  according  to 
the  proof,  and  give  the  plaintiff  a  transcript,  if  it  be  a  case 
requiring  a  transcript,  and  if  he  refuse,  mandamus  will  lie 
commanding  hini  to  do  so.  8  Cow.  133. 


518  JUSTICES'  TREATISE. 

SEC.  19.  A  judgment  by  default  will  be  set  aside  on  the 
ground  of  surprise.  2  Cal.  250. 

SEC.  20.  It  is  no  ground  for  setting  aside  a  judgment  by 
default  that  the  defendant  was  ignorant  of  the  law  requiring 
him  to  answer  in  ten  days.  9  Cal.  130. 

SEC.  21.  An  application  to  open  a  default  must  be  ac 
companied  by  some  showing  of  merits.  In  the  absence  of 
such  showing  it  will  be  denied.  21  Cal.  306. 

SEC.  22.  A  judgment  by  default  for  an  amount  exceed 
ing  that  asked  for  in  the  prayer  of  the  complaint  is  errone 
ous.  Where  the  complaint  prayed  judgment  for  a  certain 
amount  then  alleged  to  be  due,  as  principal  and  interest  of 
the  note  sued  on,  and  that  the  judgment  bear  interest  at  a 
certain  rate,  and  judgment  by  default  was  subsequently  ren 
dered  for  the  amount  with  interest  from,  the  date  of  filing 
the  complaint :  Held,  that  the  judgment  was  erroneous,  in 
awarding  interest  from  the  date  of  filing  the  complaint 
instead  of  the  date  of  its  entry.  20  Cal.  91. 

How  and  When  to  be  Rendered. 

SEC.  23.  Upon  issue  joined,  if  a  jury  trial  be  not  de 
manded,  the  justice  shall  hear  the  evidence,  and  decide  all 
questions  of  fact  and  of  law,  and  render  judgment  accord 
ingly.  Pr.  Act,  593;  Gen.  Laws,  5524. 

SEC.  24.  A  judgment  obtained  against  a  defendant  is 
erroneous  and  reversible,  if  it  was  rendered  before  the  day 
at  which  the  defendant  was  summoned  to  attend.  33  Maine 
(3  Bed.)  368. 

SEC.  25.  Upon  a  verdict,  the  justice  shall  immediately 
render  judgment  accordingly.  When  the  trial  is  by  the  jus 
tice,  judgment  shall  be  entered  immediately  after  the  close 
of  the  trial,  if  the  defendant  has  been  arrested  and  is  still 
in  custody;  in  other  cases  it  shall  be  entered  within  four 
days  after  the  close  of  the  trial.  Pr.  Act,  594. 

SEC.  26.  In  New  York,  a  justice  must  enter  judgment 
immediately  after  the  verdict  of  the  jury  is  rendered;  and 
if  he  omit  to  dcr  so  until  the  next  day,  his  judgment  is  void. 
3  Denio,  72. 

On  Joint  and  Several  Contracts. 

SEC.  27.     If  the  action  be  on  a  contract  against  two  or 


JUDGMENT.  519 

more  defendants,  and  the  summons  is  served  on  one  or 
more  but  not  on  all,  the  judgment  shall  be  entered  up  only 
against  those  who  were  served  or  have  voluntarily  appeared, 
if  the  contract  be  a  several  or  a  joint  and  several  contract; 
but  if  the  contract  be  a  joint  contract  only,  the  judgment 
shall  be  entered  up  against  all  the  defendants,  but  shall 
only  be  enforced  against  the  joint  property  of  all  and  the 
individual  property  of  the  defendants  served  or  who  have 
voluntarily  appeared  in  the  action.  Pr.  Act,  594. 

SEC.  28.  At  common  law,  where  a  joint  action  was 
brought  against  several  defendants,  and  one  of  them  was 
not  served,  no  judgment  could  be  entered  against  the  rest, 
until  such  defendant  was  driven  to  outlawry.  To  avoid  the 
expense  and  delay  of  such  a  proceeding  our  statute  has 
made  provision  as  to  defendants  not  served,  leaving  the  law 
to  stand  as  it  did  before  as  to  those  brought  in  by  summons. 
Upon  a  joint  and  several  obligation,  a  several  judgment  is 
no  bar  to  a  joint  action  against  all  the  obligors,  and  e  con- 
verso.  6  Col.  182.  In,  an  action  brought  against  two  de 
fendants  on  a  joint  and  several  obligation,  the  entry  of  final 
judgment  in  default  against  one  of  the  defendants  is  a  dis 
charge  of  the  other.  6  Cal.  176. 

SEC.  29.  There  is  nothing  in  the  practice  act  which  has 
altered  the  common-law  rule  in  this  respect.  6  Cal.  83. 
In  an  action  against  defendants  jointly  indebted,  where  one 
is  served,  a  several  judgment  may  be  entered  against  him. 

6  Cal.  609. 

Specific  Contracts. 

SEC.  30.  In  an  action  on  a  contract  or  obligation  in 
writing  for  the  direct  payment  of  money,  made  payable  in  a 
specified  kind  of  money  or  currency,  judgment  for  the 
plaintiff,  whether  the  same  be  by  default  or  after  verdict, 
may  follow  the  contract  or  obligation,  and  be  made  payable 
in  the  kind  of  money  or  currency  specified  therein.  Pr. 
Act,  594;  Gen.  Laws,  5525. 

SEC.  31.  The  specific  contract  act  is  not  in  conflict  with 
the  constitution  of  this  state,  nor  is  it  opposed  to  the  prin 
ciples  of  essential  justice.  26  Cal.  47. 

When  Claim  exceeds  Jurisdiction. 
SEC.  32.  .  When  the  amount  found  due  to  either  party 


520  JUSTICES'  TBEATISE. 

exceeds  the  sum  for  which  the  justice  is  authorized  to  enter 
judgment,  such  party  may  remit  the  excess,  and  judgment 
may  be  rendered  for  the  residue.  Pr.  Act,  Gen.  Laws,  5526. 

SEC.  33,  Where  judgment  for  damages  is  for  more  than 
the  amount  claimed  in  the  complaint  the  excess  may  be 
remitted  and  the  judgment  stand.  14  Col.  419. 

SEC.  34.  Judgment  cannot  be  rendered  in  favor  of  plaint 
iff  for  a  greater  sum  than  the  amount  of  damages  laid  by 
him.  3  Cal  396. 

SEC.  35.  A  creditor  who  knowingly  takes  a  judgment 
against  a  debtor  for  an  amount  greater  than  the  debt  then 
due,  is  postponed  to  other  creditors.  7  Cal.  356. 

In  Cases  of  Arrest. 

SEC.  36.  "When  a  judgment  is  rendered  in  a  case  where 
the  defendant  is  subject  to  arrest  and  imprisonment  there 
on,  it  shall  be  so  stated  in  the  judgment,  and  entered  in  the 
docket.  Pr.  Act,  597;  Gen.  Laws,  5528. 

In  Replevin. 

SEC.  37.  In  an  action  of  replevin  where  the  defendant 
has  required  the  return  of  the  propery  and  given  an  under 
taking  for  such  purpose,  a  judgment  for  plaintiff  in  order  to 
hold  the  sureties  on  the  undertaking  must  be  in  the  alter 
native,  as  required  by  sections  one  hundred  and  four,  one 
hundred  and  seventy-seven,  two  hundred  and  two  hundred 
and  ten,  of  the  practice  act.  7  Cal.  568.  The  sureties  only 
bind  themselves  "to  make  good  any  judgment  that  plaintiff 
may  lawfully  obtain  against  the  defendant.  7  Cal.  568. 

Offer  to  Allow. 

SEC.  38.  If  the  defendant,  at  any  time  before  the  trial, 
offer,  in  writing,  to  allow  judgment  to  be  taken  against  him 
for  a  specified  sum,  the  plaintiff  may  immediately  have 
judgment  therefor,  with  the  costs  then  accrued;  but  if  he 
do  not  accept  such  offer  before  the  trial  and  fail  to  recover 
in  the  action  a  sum  equal  to  the  offer,  he  shall  not  recover 
costs,  but  costs  shall  be  adjudged  against  him,  and  if  he 
recover  deducted  from  his  recovery.  But  the  offer  and 
failure  to  accept  it  shall  not  be  given  in  evidence  to  affect 


JUDGMENT.  521 

the  recovery  otherwise  than  as  to  costs,  as  above  provided. 
Pr.  Act,  596;  Gen.  Laws,  5527. 

By  Confession. 

SEC.  39.  A  judgment  by  confession  may  be  entered  with 
out  action,  either  for  money  due  or  to  become  due,  or  to 
secure  any  person  against  contingent  liability  on  behalf  of 
the  defendant  or  both,  in  the  manner  prescribed  by  this 
chapter.  Pr.  Act,  374. 

SEC.  40.  A  statement,  in  writing,  shall  be  made,  signed 
by  the  defendant  and  verified  by  his  oath,  to  the  following 
effect : 

1st.  It  shall  authorize  the  entry  of  judgment  for  a  speci 
fied  sum. 

2d.  If  it  be  for  money  due  or  to  become  due,  it  shall 
state  concisely  the  facts  out  of  which  it  arose,  and  shall 
show  that  the  sum  confessed  therefor  is  justly  due  or  to 
become  due. 

3d.  If  it  be  for  the  purpose  of  securing  the  plaintiff 
against  a  contingent  liability,  it  shall  state  concisely  the 
facts  constituting  the  liability,  and  shall  show  that  the  sum 
confessed  therefor  does  not  exceed  the  same.  Pr.  Act,  375. 

SEC.  41.  The  following  is  a  form  of  statement  and  con 
fession  : 

Statement  and  Confession  of  Judgment  without  Action,  and  Entry  of  Judgment. 

In  the  justice's  court, f township,  county  of ,  state 

of.. 


I, ,  the  defendant  in  the  above-entitled  action,  do  hereby  confess 

judgment  therein  in  favor  of ,  the  plaintiff  in  said  action  for  the 

sum  of  ....  hundred  dollars,  gold  coin  of  the  United  States,  and  authorize 
judgment  to  be  entered  therefor  against  me  with  legal  interest  thereon  from 
this  date. 

This  confession  of  judgment  is  for  a  debt  justly  due  and  owing  to  the  said 
plaintiff,  arising  upon  the  following  facts,  to  wit: 

On  the day  of I  did  execute  and  deliver  to  said  plaintiff  my 

promissory  note,  for  the  sum  of  ....  hundred  dollars,  payable  in  ...  months 
from  date,  and  bearing  interest  from  date  at  the  rate  of  ....  per  cent,  per 
month  until  paid,  in  gold  coin  of  the  United  States;  that  said  note  was  given 
for  the  amount  due  said  plaintiff  for  goods,  wares  and  merchandise,  by  him 
sold  and  delivered  to  me  before  that  time  [state  the  manner  in  which  the 

66 


522  JUSTICES'  TREATISE. 

debt  was  created;  if  no  note  was  given,  say  for  "goods,  wares  and  merchan-" 
dise,  before  this  date  sold  and  delivered  to  me  at  my  request,  amounting  to 

the  sum  of hundred  dollars  "]  no  part  of  which  has  ever  been  paid  to 

said  plaintiff. 


Defendant  in  person. 

State  of ,  ) 

county  of j  ss> 

,  being  duly  sworn,  says  that  he  is  the  person  who  signed  the 

above  statement,  and  that  he  is  indebted  to  the  said in  the  sum  of 

....  hundred  dollars,  gold  coin  of  the  United  States  in  said  statement  men 
tioned,  and  that  the  facts  stated  in  the  above  confession  and  statement  are 
true. 


Subscribed  and  sworn  to  before  me,  this day  of  .  . . .,  A.D.  18. . 

Justice  of  the  peace  in  and  for  said  township. 

Entry  of  Judgment  on  the  Foregoing  Confession. 

In  the  justice's  court  in  and  for township,  county  of ,  state 

of  .. 


In  this  action,  the  defendant, ,  having  filed  his  confession  of 

judgment,  wherein  he  authorizes  and  consents  that  judgment  be  entered  in 

favor  of  the  plaintiff, ,  for  the  sum  of  ....  hundred  dollars,  gold 

coin  of  the  United  States : 

It  is  therefore  by  reason  of  the  law  and  the  premises  aforesaid,  ordered, 

adjudged  and  decreed,  that ,  the  said  plaintiff,  do  have  and  recover 

of  and  from ,  the  said  defendant,  . .  .  hundred  dollars,  gold  coin 

of  the  United  States,  with  interest  thereon  at  the  rate  of  ....  per  cent,  per 
annum,  from  the  date  hereof,  until  paid,  together  with  the  sum  of  ....  dol 
lars  costs  herein. 


Justice  of  the  peace. 
Dated  this of 18  ... 

[In  this  form  the  entry  of  judgment  is  indorsed  on  the  statement  and 
confession.] 

SEC.  42.  The  legislature  did  not  intend  more  definite- 
ness  of  particularity  in  cases  of  confession  of  judgment 
than  in  complaints  upon  the  same  cause  of  action  in  the 
ordinary  course  of  procedure.  12  Cal.  147. 

SEC.  43.  Must  be  Signed  by  Each. — Under  the  practice 
act  of  1850,  a  judgment  by  confession  is  invalid,  unless  the 
instrument  authorizing  its  entry  is  signed  by  each  of  the 
persons  against  whom  it  authorizes  judgment  to  be  entered. 
Chopin  vs.  Thompson,  20  Cal.  681. 


JUDGMENT.  523 

SEC.  44.  Where,  under  said  act,  two  persons  signed  a 
confession  of  judgment  against  themselves  and  two  others : 
Held,  that  the  judgment  entered  thereon  being  void  as  to 
those  not  signing,  was  equally  so  as  to  those  signing,  and 
that  the  authority  being  to  enter  a  judgment  against  four, 
no  judgment  thereunder  could  be  entered  against  a  less 
number.  20  Cal  681. 

Costs  Taxed. 

SEC.  45.  When  the  prevailing  party  is  entitled  to  costs 
by  this  chapter,  the  justice  shall  add  their  amount  to  the 
verdict;  or,  in  case  of  a  failure  of  the  plaintiff  to  recover  or 
in  case  of  a  dismissal  of  the  action,  shall  enter  up  judg 
ment  in  favor  of  the  defendant  for  the  amount  of  such  costs. 
Pr.  Act,  598 ;  Gen.  Laws,  5529. 

SEC.  46.  Taxing  the  costs  is  a  judicial  act;  therefore, 
where  a  justice  entered  the  verdict  in  his  docket  immedi 
ately  upon  its  being  rendered  but  omitted  to  complete  the 
taxation  of  costs  until  eight  days  afterwards,  it  was  held 
that  the  judgment  was  erroneous.  3  Denio,  72. 

Interest  on. 

SEC.  47.  In  a  judgment  in  a  suit  on  a  note  bearing  inter 
est,  the  interest  is  to  be  computed  and  made  part  of  the 
judgment  and  the  judgment  to  bear  the  agreed  interest.  6 
Cal.  155. 

SEC.  48.  In  a  judgment  in  a  suit  on  a  note  bearing  an 
agreed  amount  of  interest,  the  interest  is  to  be  computed 
and  made  a  part  of  the  judgment  and  the  judgment  should 
bear  the  agreed  interest.  9  Cal.  294. 

Lien  of— By  Justice. 

SEC.  49.  No  judgment  rendered  by  a  justice  of  the  peace 
shall  create  any  lien  upon  any  lands  of  the  defendant,  un 
less  a  transcript  of  such  judgment,  certified  by  the  justice, 
be  filed  and  recorded  in  the  office  of  the  recorder.  When 
such  transcript  is  to  be  filed  in  any  other  county  that  that 
in  which  the  justice  resides,  such  transcript  shall  be  accom 
panied  with  the  certificate  of  the  county  clerk  as  to  the  offi 
cial  character  of  the  justice.  When  so  filed  and  recorded 
in  the  office  of  the  recorder  for  any  county,  such  judgment 


524  JUSTICES'  TREATISE. 

shall  constitute  a  lien  upon  and  bind  the  lands  and  tene 
ments  of  the  judgment-debtor  situated  in  the  county  where 
such  transcript  may  be  filed  and  recorded  in  favor  of  such 
judgment-creditor,  as  if  such  judgment  had  been  rendered 
in  the  district  court  of  such  county.  Pr.  Act,  599 ;  Gen. 
Laws,  5530. 

CHAPTER     LXI. 
LANDLORD    AND    TENANT. 

SECS.  SECS. 

RELATION  OF  TENANT  TO  LAND-  WHAT  ABE 13-20 

LORD 1-4  ASSIGNOR  OF  LEASE  HOLDS  Es- 


EVICTION  OF  TENANT 5-7 

RENTS,  PAYMENT  OF 8-12 

TENANT  ENTITLED  TO  FIXTURES, 


TATE 21-23 

REMOVAL  OF 24-31 

FORMS  OF  LEASE  ETC  .  32 


Relation  of. 

SECTION  1.  A  person  who  enters  into  possession  of  land 
under  another  cannot  question  the  title  of  him  under  whom 
he  holds.  Pierce  vs.  Minium,  1  Cal.  470.  A  tenant  cannot 
dispute  his  landlord's  title,  nor  can  he  set  up  against  his 
landlord  an  outstanding  title  without  first  surrendering  pos 
session.  Tewksberry  vs.  Hagraff,  33  Cal.  237.  Nor  can  he 
deny  the  title  of  the  vendor  of  the  landlord.  HcKune 
vs.  Montgomery,  9  Cal.  575.  And  if  a  person  acquires  pos 
session  of  land  from  a  tenant  with  the  full  knowledge  of  the 
tenancy  he  cannot  deny  the  landlord's  title.  Anderson  vs. 
Parker,  6  Cal.  197. 

SEC.  2.  Tenant  cannot  Destroy  his  Tenancy. — The  tenant 
cannot,  by  submitting  to  being  wrongfully  turned  out  of 
possession  under  a  writ  which  did  not  run  against  him  and 
then  attorning  to  the  plaintiff  in  the  writ,  prevent  his  first 
landlord  from  recovering  possession  against  him  for  non 
payment  of  rent.  31  Cal.  333. 

SEC.  3.  Although,  as  a  general  rule,  a  tenant  cannot  dis 
pute  his  landlord's  title,  he  may  show  that  it  has  termina 
ted  or  that  his  attornment  was  made  under  mistake  of  fact 
or  by  fraud.  8  Cal.  592. 

SEC.  4.  If  the  tenant  is  evicted  by  a  wrong-doer  the 
landlord  is  not  bound  to  indemnify  him.  23  Cal.  227. 


LANDLORD  AND  TENANT.  525 

Eviction  of  Tenant. 

SEC.  5.  Title  Paramount. — If  the  tenant  is  evicted  by 
title  paramount,  and  the  landlord  defends  the  action  and 
after  the  eviction  appeals,  the  taking  of  the  appeal  does  not 
restore  the  relation  of  landlord  and  tenant  which  has  been 
destroyed  by  the  eviction,  so  as  to  enable  the  landlord  to 
commence  an  action  against  the  tenant  for  holding  over,  if 
such  action  is  commenced  before  a  reversal  of  the  judg 
ment.  34  Cal  265. 

SEC.  6.  If  a  party  hold  a  lease  from  one  of  two  tenants 
in  common  for  certain  premises,  and  the  other  tenant  in 
common  afterwards  takes  possession  of  a  part  of  the  com 
mon  property,  the  lessee  has  no  remedy  against  him,  and 
will  be  entitled  to  an  abatement  pro  tanto  in  his  rents. 
Evidence  tending  to  show  that  the  defendant  was  kept  out 
of  possession  of  part  of  the  leased  premises  by  a  tenant  in 
common  of  the  lessor  or  his  agent,  should  have  been  admit 
ted.  1  Nev.  434. 

SEC.  7.  It  has  been  decided  that  the  entry  of  a  landlord 
upon  his  tenant's  premises  without  his  consent  during  the 
lease  and  reletting  them,  was  a  discharge  of  the  tenant 
from  his  covenants,  except  as  to  such  part  of  the  rent  as 
had  accrued  at  the  time  of  re-entry,  which  the  landlord 
is  entitled  to  recover :  Held,  that  the  above  exception  is  in 
abrogation  of  one  of  the  plainest  principles  of  law,  and  if 
the  case  were  new  the  court  would  overrule  it.  2  Cal.  374. 

Rents,  Payment  ot 

SEC.  8.  The  right  to  recover  rents  and  profits  for  use 
and  occupation  is  founded  alone  on  contract.  3  Cal.  373. 

SEC.  9.  To  enable  a  party  to  recover  rent,  eo  nomine,  he 
must  show  that  the  defendant's  possession  was  by  virtue  of 
some  express  or  implied  agreement,  and  no  action  will  lie 
where  the  possession  was  adverse  or  tortious,  for  such  pos 
session  excludes  all  idea  of  contract.  Thus,  assumpsit  will 
not  lie  to  recover  rent  for  premises  the  possession  of  which 
the  plaintiff  had  previously  recovered  by  ejectment  against 
the  defendant.  5  Cal.  223. 

SEC.  10.  A  clause  in  a  lease  exempting  the  tenant  from 
liability  to  restore  the  house  in  case  it  should  be  destroyed 


526  JUSTICES'  TREATISE. 

by  fire,  does  not  relieve  him  from  paying  rent  in  case  of 
such  destruction.  4  Cal.  340. 

SEC.  11.  A  person  who,  after  the  commencement  of  an 
action  to  foreclose  a  mortgage,  acquires  possession  of  the 
premises  from  one  of  the  defendants  and  continues  to  oc 
cupy  after  a  sale  under  the  decree  of  foreclosure,  is  a  "ten 
ant  in  possession,"  and  liable  as  such  to  the  purchaser  for 
the  rents-  and  profits  accruing  between  the  sale  and  the 
execution  of  the  sheriff's  deed.  21  Cal.  135. 

SEC.  12.  Where  a  lease  contained  the  usual  covenants 
for  payment  of  rent  and  re-entry  for  non-payment,  and  pro 
vided  for  the  appraisement  of  improvements  erected  by  the 
lessee,  and  payment  of  their  value  by  the  lessor  at  the  ex 
piration  of  the  term,  and  the  lessor  re-entered  for  non-pay 
ment  of  rent:  Held,  that  the  lessee  could  not  maintain  an 
action  upon  being  evicted  for  the  value  of  his  improve 
ments.  If  the  lessee  has  any  remedy  he  must  wait  until  the 
time  expires  which  the  contract  has  fixed.  He  cannot  by 
his  own  default  change,  in  his  own  favor,  the  terms  of  the 
contract  and  fix  upon  the  lessor  a  contract  he  never  made. 
11  Cal  302,  303. 

Fixtures,  Entitled  to. 

SEC.  13.  A  fixture  is  an  article  of  a  personal  nature  af 
fixed  or  annexed  to  the  freehold;  that  is,  fastened  to  or 
connected  with  it;  mere  juxtaposition  or  the  laying  of  an 
object,  however  heavy,  on  the  freehold  does  not  amount  to 
annexation.  A  fixture  may  exist  on  public  land.  The  title 
to  the  land,  whatever  it  is,  carries  with  it  the  title  to  the 
structures  annexed  to  the  soil.  14  Cal.  64. 

SEC.  14.  Tenants  have  a  right  to  remove  buildings 
erected  by  them  at  any  time  before  the  expiration  of  their 
leases,  but  not  after  a  forfeiture  or  re-entry  for  covenant 
broken.  8  Cal.  36. 

SEC.  15.  The  rule  in  reference  to  fixtures  is  applied  with 
different  degrees  of  strictness  as  between  different  parties. 
A  tenant  who  puts  up  machinery  for  a  mill  in  a  house  leased, 
and  fastens  it  by  bolts,  screws,  etc.,  to  the  house,  has  the 
right  to  remove  it.  But  as  between  vendor  and  vendee  the 
machinery  would  be  considered  as  part  of  the  realty.  9  Cal. 
121,  122. 


LANDLOKD  AND  TENANT.  527 

SEC.  16.  Where  a  tenant  had  erected  a  barn  on  pattens 
and  blocks  of  timber  lying  on  the  ground,  but  not  fixed  in 
or  to  the  ground,  it  was  held  he  might  take  them  away  at 
the  end  of  his  term.  The  general  rule  is,  that  to  consti 
tute  an  article  a  fixture — i.  e.,  a  part  of  the  realty — it  must 
be  actually  annexed  thereto,  and,  e  converso,  whatever  is  so 
annexed  becomes  part  of  the  realty,  and  the  person  who 
was  the  owner  of  it  when  a  chattel  loses  his  property  in  it. 
14  Cal  65. 

SEC.  17.  Where  a  landlord  agreed  to  allow  his  tenant  a 
reasonable  time,  after  the  expiration  of  his  lease,  to  remove 
his  buildings,  and  the  tenant  surrendered  or  forfeited  his 
lease  before  the  expiration  thereof,  the  intention  of  the 
parties  must  be  confined  to  its  legal  expiration  and  not  to 
the  wrongful  act  of  the  lessee  in  terminating  it,  and  the 
lessee  can  claim  no  right  under  the  contract.  8  Cal.  36. 

SEC.  18.  The  rule  of  law  in  regard  to  fixtures,  as  between 
landlord  and  tenant,  may  be  summed  up  as  follows :  The 
tenant  may,  at  any  time  before  his  term  of  tenancy  expires, 
sever  and  take  from  the  freehold  all  such  fixtures  of  a  chat 
tel  nature  as  he  has  himself  erected  upon  it,  either  for  the 
purpose  of  ornament,  domestic  convenience  or  to  carry  on 
a  trade :  provided,  always,  that  the  removal  can  be  effected 
without  material  injury  to  the  freehold.  Merritt  vs.  Judd, 
14  Cal.  59.  There  have  been  upon  this  subject  frequent 
adjudications,  which  may  serve  to  throw  some  light  on  the 
relative  rights  of  landlord  and  tenant.  They,  however,  em 
brace  only  a  few  conditions  of  things  compared  with  the 
many  that  may  exist.  It  is  admitted  that  tenants  may  re 
move  baker's  ovens,  salt-pans,  carding  machines,  cider  mills 
and  furnaces,  steam  engines,  soap  boilers,  vats  and  copper 
stills,  mill  stones,  Dutch  barns  standing  on  a  foundation  of 
brick-work  set  in  the  ground;  a  varnish-house  built  upon  a 
similar  foundation,  with  a  chimney,  and  a  ball-room  erected 
by  the  lessee  of  an  inn,  resting  upon  stone  posts  slightly 
imbedded  in  the  soil,  and  also  things  ornamental  or  for 
domestic  convenience,  as  furnaces,  stoves,  cupboards  and 
shelves,  bells  and  bell-pulls,  gas  fixtures,  pier  and  chimney- 
glasses,  although  attached  to  the  wall  with  screws;  marble 
chimney-pieces,  grates,  window-blinds  and  Curtains.  The 


528  JUSTICES'  TREATISE. 

decisions  are,  however,  adverse  to  the  removal  of  hearth 
stones,  doors,  windows,  locks  and  keys,  because  such  things 
are  peculiarly  adapted  to  the  house  in  which  they  are  af 
fixed;  also,  to  all  substantial  additions  to  the  premises,  as 
conservatories,  green-houses  (except  those  of  a  professional 
gardener),  stables,  pig-sties  and  other  out-houses,  shrub 
bery  and  flowers  planted  in  a  garden.  Nor  has  the  rule  been 
extended  to  erections  for  agricultural  purposes,  though  it  is 
difficult  to  perceive  why  such  fixtures  should  stand  upon  a 
less-favored  basis  than  trade-fixtures  when  the  relative  im 
portance  of  the  two  arts  is  considered.  Taylor  on  Landl. 
and  Ten.  Sees.  544-550. 

SEC.  19.  The  time  for  exercising  this  right  of  removal  is 
a  matter  of  some  importance.  A  tenant  for  years  may  re 
move  them  at  any  time  before  he  gives  up  the  possession  of 
the  premises,  although  it  may  be  after  his  term  has  expired 
and  while  he  is  holding  over.  But  tenants  for  life  or  at 
will,  having  uncertain  interests  in  the  land,  have  after  the 
determination  of  their  relation  as  tenants,  not  occasioned  by 
their  own  fault,  a  reasonable  time  within  which  to  remove 
their  fixtures.  3  Atk.  Ch.  13.  If  a  tenant-quits  possession 
of  the  land  without  removing  such  fixtures  as  he  is  entitled 
to,  the  property  in  them,  immediately  vests  in  the  landlord, 
and  though  they  are  subsequently  severed  the  tenant's  right 
to  them  does  not  revive. 

SEC.  20.  If,  therefore,  a  tenant  desires  to  have  any  such 
things  upon  the  premises  after  the  expiration  of  his  term 
for  the  purpose  of  valuing  them  to  an  incoming  tenant  or 
the  like,  he  should  take  care  to  get  the  landlord's  consent, 
otherwise  he  will  lose  his  property  in  them  entirely.  1  B. 
&  A.  K.  B.  394.  The  rights  of  parties — tenants  or  land 
lords — with  respect  to  particular  articles  are  sometimes  reg 
ulated  by  local  customs,  especially  as  between  outgoing  and 
incoming  tenants,  and  in  cases  of  this  kind  it  becomes  a 
proper  criterion  by  which  to  determine  the  character  of  the 
article  and  whether  it  is  a  fixture  or  not.  Viner's  Ab.  Landl. 
&  Ten.  and  Waslib.  Real  Prop. 

Assignor  of  Leasehold  Estate. 

SEC.  21,     The  assignor  of  a  leasehold  estate,  who  has 


LANDLORD  AND  TENANT.  529 

parted  with  his  whole  interest  therein,  is  not  liable  for  the 
rents  and  profits  of  the  premises  after  the  assignment  from 
the  single  fact  that  his  assignee  has  continued  to  occupy 
them.  1  Cal  475. 

SEC.  22.  Executors  who  have  entered  into  and  possessed 
a  leasehold  estate  of  which  their  testator  was  assignee,  are 
liable  for  the  rents  accruing  during  the  possession  as  as 
signees  de  bonis  propriis.  6  Cal.  606. 

SEC.  23.  In  Walton  vs.  Cronly's  Administrator  (14  "Wend. 
63),  the  action  was  brought  for  the  recovery  of,  rent  due 
upon  a  lease  executed  by  the  plaintiff  to  one  Dillon  who 
had  assigned  the  lease  to  Cronly,  the  intestate,  but  remained 
in  possession  of  the  premises.  The  assignment,  as  in  the 
case  at  bar,  was  absolute  upon  its  face,  but  was  proved  by 
parol  evidence  to  have  been  intended  as  a  security  by  way 
of  mortgage  for  a  pre-existing  debt.  The  court  held,  on 
the  authority  of  Astor  vs.  Hoyt,  that  a  mortgage  out  of 
possession  was  not  liable  for  rent;  and  further,  that  the 
parol  evidence  was  admissible,  not  only  as  between  the  par 
ties  to  the  instrument,  but  where  third  persons  were  con 
cerned,  if  no  trust  or  confidence  had  been  reposed  upon 
the  absolute  form  of  the  instrument  and  they  had  not  been 
thereby  misled.  15  Cal.  293.  In  this  state  a  mortgage  of 
a  term  in  possession  is  not  liable  as  assignee  upon  the 
covenants  of  the  lease.  15  Cal.  287. 

SEC.  24.     Conventional  Landlord  can  alone  Remove  Tenant. 
—The  right  to  remove  a  tenant  under  the  act  concerning 
forcible  entries  and  unlawful  detainers,  is  given  to.  the  con 
ventional  landlord  alone  and  not  to  his  successors  in  the 
estate.     29  Cal.  168. 

SEC.  25.  A  demand  of  possession  must  be  made  by  the 
landlord  before  bringing  suit  against  his  tenant  for  holding 
over.  Such  demand  is  indispensable,  and  is  as  necessary 
to  be  made  before  suit  as  that  the  relation  of  landlord  and 
tenant  should  exist.  Paul  et  al.  vs.  Armstrong,  1  Nev.  82. 

SEC.  26.     When  a  relation  of  landlord  and  tenant  is  once 

established,  an  action  for  unlawful  detainer  for  holding  over 

contrary  to  the  terms  of  agreement  between  the  parties  for 

the  cancellation  of  the  leasehold  may  be  maintained  until 

67 


530  JUSTICES'  TREATISE. 

tlie  relation  is  destroyed  by  a  surrender  of  the  demised 
premises  or  by  law.     33  Gal.  401. 

SEC.  27.  In  an  action  by  the  landlord  against  the  tenant 
for  an  unlawful  detainer,  damages  sustained  by  the  landlord 
to  property  adjoining  the  demised  premises  in  consequence 
of  the  tenant  holding  over  cannot  be  recovered.  33  Cat. 
401. 

SEC.  28.  If  the  landlord  give  notice  to  quit  immediately 
after  the  expiration  of  the  tenant's  term,  and  the  tenant 
hold  over,  the  landlord  may  maintain  ejectment  without 
waiting  one  month  after  the  notice.  28  Col.  551. 

SEC.  29.  The  landlord  is  not  required  to  wait  one  month 
after  notice  to  the  tenant  to  quit  before  bringing  ejectment 
to  remove  the  tenant,  unless  by  the  laches  of  the  landlord 
the  relation  of  tenancy  by  sufferance  has  been  established. 
28  Cal  551. 

SEC.  30.  Under  the  forcible  entry  and  detainer  act  of 
April  27th,  1863,  of  California,  an  action  for  an  unlawful 
holding  over  cannot  be  maintained,  unless  the  relation  of 
landlord  and  tenant  is  shown  to  exist  between  the  plaintiff 
and  defendant  at  the  time  of  making  plaintiff's  demand  for 
possession,  as  required  by  section  four  of  said  act.  Stein- 
bach  vs.  Krone,  36  Cal.  303. 

SEC.  31.  Tenancy  Terminated  by  the  Eviction  of  Tenant. — 
Where  a  tenant  is  evicted  on  final  process  in  an  action  of 
ejectment  by  a  party  claiming  title  adverse  to  his  lessor,  of 
which  action  the  latter  had  timely  notice,  the  tenancy  is 
thereby  determined,  and  a  subsequent  taking  and  holding 
by  the  tenant  under  a  lease  from  the  evictor  is  not  in  sub 
ordination  to  the  title  of  his  original  lessor,  and  an  action 
by  the  latter  against  the  tenant  under  the  forcible  entry 
and  detainer  act,  for  an  unlawful  holding  over,  may  be  suc 
cessfully  resisted  by  the  tenant  by  showing  such  judgment 
and  eviction.  36  Cal.  30$. 

SEC.  32.     The  following  is  a  form  of  lease,  etc. : 

Form  of  Lease. 

This  indenture,  made  the  ....  day  of  . . . . ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  . . . . ,  witnesseth,  that does  hereby 

lease,  demise  and  let,  unto. [here  describe  the  property]. 

To  have  and  to  hold,  for  the  term  of  .....  to  wit :  from  the  ....  day  of 


LANDLOED  AND  TENANT.  531 

. . . . ,  A.D.  18 . . ,  to  the  ....  day  of  . . . . ,  A.D.  18 . . ,  yielding  and  paying  there 
for  the  rent  of  ....  dollars,  gold  coin  of  the  United  States  of  America,  and 
the  said  lessee  promises  to  pay  the  said  rent  in  such  gold  coin  and  as  follows, 
to  wit:  [state  terms  of  lease]  and  to  quit  and  deliver  up  the  premises  to  the 

lessor  or ,  agent  or  attorney,  peaceably  and  quietly,  at  the  end  of 

the  term,  in  as  good  order  and  condition  (reasonable  use  and  wear  thereof 
and  damages  by  the  elements  excepted)  as  the  same  are  now  or  may  be  put 
into,  and  to  pay  the  rent  as  above  stated  during  the  term ;  also  the  rent  as 
above  stated  for  such  further  time  as  the  lessee  may  hold  the  same,  and  not 
make  or  suffer  any  waste  thereof;  nor  lease,  nor  underlet,  nor  permit  any 
other  person  or  persons  to  occupy  or  improve  the  same,  or  make  or  suffer  to 
be  made,  any  alterations  therein,  but  with  the  approbation  of  the  lessor 
thereto,  in  writing,  having  been  first  obtained;  and  that  the  lessor  may  enter 
to  view  and  make  improvements,  and  to  expel  the  lessee,  if  he  shall  fail  to 
pay  the  rent  as  aforesaid  or  make  or  suffer  any  strip  or  waste  thereof. 

And  should  default  be  made  in  the  payment  of  any  portion  of  said  rent 
when  due,  and  for  ....  days  thereafter,  the  lessor  ....  agent  or  attorney, 
may  re-enter  and  take  possession  at  ....  option  and  terminate  this  lease. 

'...-       [L.S.] 

Signed,  sealed  and  delivered,  in  the  presence  of 


Another  Form. 

This  indenture,  made  the  ....  day  of  . . . . ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  . . . . ,  between  and  ,  the 

party  of  the  second  part,  witnesseth,  that  the  said  party  of  the  first  part,  has 
granted,  demised  and  to  farm  let,  and  by  these  presents  does  grant,  demise 
and  to  farm  let  unto  the  said  party  of  the  second  part  [describe  property], 

with  the  appurtenances,  for  the  term  of from  the  . . .  day  of A.D. 

one  thousand  eight  hundred  and ,  at  the rent  or  sum  of dol 
lars,  payable  [state  terms]. 

And  it  is  hereby  agreed,  that  if  any  rent  shall  be  due  and  unpaid,  or  if 
default  shall  be  made  in  any  of  the  covenants  herein  contained,  then  it  shall 
be  lawful  for  the  said  party  of  the  first  part  to  re-enter  the  said  premises  and 
to  remove  all  persons  therefrom. 

And  the  said  party  of  the  second  part  does  hereby  covenant,  promise  and 
agree,  to  pay  the  said  party  of  the  first  part  the  said  rent  in  the  manner 
herein  specified.  [Insert  specifications.]  And  at  the  expiration  of  the  said 
term,  the  said  party  of  the  second  part  will  quit  and  surrender  the  said 
premises  in  as  good  state  and  condition  as  reasonable  use  and  wear  thereof 
will  permit,  damages  by  the  elements  excepted. 

And  the  said  party  of  the  first  part  does  hereby  covenant,  promise  and 
agree,  that  the  said  party  of  the  second  part,  paying  the  said  rent  and  perform 
ing  the  covenants  aforesaid,  shall  and  may  peaceably  and  quietly  have,  hold 
and  enjoy,  the  said  premises  for  the  term  aforesaid. 

In  witness  whereof,  we  have  hereunto  set  our  hands  and  seals  the  day 
and  year  first  above  written. 

[L.B.] 

•  [L.S.] 

Signed,  sealed  and  delivered,  in  presence  of 


532  JUSTICES'  TEEATISE. 

Form  of  Notice  to  Quit,  by  Landlord. 
To ,  esq. : 

Take  notice,  that  you  are  hereby  required  to  quit  and  deliver  up  to  me 
possession  of  the  premises  now  held  and  occupied  by  you,  being  the  premises 
known  as  [or,  "situated";  give  description],  at  the  expiration  of  the  month 
[or,  "week,"  or,  "year,"  as  may  be]  of  your  tenancy  of  said  premises,  com 
mencing  on  the day  of ,  A.D.  18 .,  and  ending  on  the  . , . .  day  of 

. . . .,  A.D.  18. .  This  is  intended  as  a  month's  notice  to  quit,  for  the  purpose 
of  terminating  your  tenancy  aforesaid. 

Dated  ....  day  of. ...,  18.. 

Form  of  Notice  of  Quitting  Premises  by  Tenant. 

To .landlord: 

Please  take  notice,  that  I  shall  quit  possession  and  deliver  up  the  premises 
now  held  and  occupied  by  me,  being  the  premises  [description]  at  the  end 
of  tenancy,  to  wit:  on  the  ....  day  of  . . . .,  18. .,  as  I  intend  to  remove  there 
from  and  to  terminate  the  said  tenancy.  Tours,  etc., 


Dated  ....  day  of ,18.. 


CHAPTER   LXII. 
LIENS  OF  MECHANICS  AND  OTHERS. 


MECHANICS  ...................  1-6 

STABLE  AND  KANCHMEN  ........  7 

POSSESSION  or,  NECESSAET  .....  8 

MASTEE  or  A  SHIP  ............  9 


SECS. 

INNKEEPEBS 10 

CAEEIEES 11-12 

VENDOES  OF  KEAL  ESTATE..  13 


SECTION  1.  The  following  is  an  act  for  securing  liens  of 
mechanics  and  others,  approved  March  30th,  1868  : 

1.  Every  mechanic,  artisan,  machinist,  builder,  contract 
or,  lumber-merchant,  miner,  laborer  and  other  person,  per 
forming  labor  upon  or  furnishing  materials  of  any  kind  to 
be  used  in  the  construction,  alteration  or  repair,  either  in 
whole  or  in  part,  of  any  mining  claim,  building,  wharf, 
bridge,  ditch,  flume,  tunnel,  fence,  machinery,  railroad, 
wagon-road,  aqueduct  to  create  hydraulic  power  for  min 
ing  or  other  purposes,  or  any  other  structure  or  super 
structure,  or  who  shall  perform  labor  in  any  mining  claim, 
shall  have  a  lien  upon  the  same  for  the  work  or  labor  done 
or  materials  furnished  by  each,  respectively,  whether  done 


LIENS  OF  MECHANICS  AND  OTHEES.         533 

or  furnished  at  the  instance  of  the  owner  of  the  building  or 
other  improvement  or  his  agent;  and  every  contractor, 
sub-contractor,  architect,  builder  or  qther  person,  having 
charge  of  a  ay  mining  or  of  the  construction,  alteration  or 
repair,  either  in  whole  or  in  part,  of  any  building  or  other 
improvement  as  aforesaid,  shall  be  held  to  be  the  agent  of 
the  owner  for  the  purposes  of  this  act. 

2.  The  land  upon  which  any  building  or  other  improve 
ment  as  aforesaid  shall  be   constructed,  together  with  a 
convenient  space  about  the  same,  or  so  much  as  may  be 
required  for  the  convenient  use  and  occupation  thereof, 
shall  also  be  subject  to  the  liens  created  by  this  act  if,  at 
the  time  the  work  was  commenced  or  the  materials  for  the 
same  had  commenced  to  be  furnished,  the  said  land  be 
longed  to  the  person  who  caused  said  building  or  other 
improvement  to  be  constructed,  altered  or  repaired;   but 
if  such  person  owned  less  than  a  fee-simple  estate  in  such 
land,  then  only  his  interest  therein  shall  be  subject  to  such 
lien ;  and  in  case  such  interest  shall  be  a  leasehold  interest, 
and  the  holder  thereof  shall  have  forfeited  his  right  thereto, 
the  purchaser  of  such  building  or  improvement  and  lease 
hold  term,  or  so  much  thereof  as  remains  unexpired  at  any 
sale  under  the  provisions  of  this  act,  shall  be  held  to  be 
the  assignee  of  such  leasehold  term,  and  as  such  shall  be 
entitled  to  pay  the  lessor  all  arrears  of  rent  or  other  money 
and  cost  due  under  said  lease,  unless  the  lessor  shall  have 
regained  possession  of  the  said  land  and  property,  or  ob 
tained  judgment  for  the  possession  thereof  prior  to  the 
commencement  of  the  construction,  alteration  or  repair,  of 
the  building  or  other  improvement  thereon ;  in  which  event 
said  purchaser  shall  have  the  right  only  to  remove  the  build 
ing  or  other  improvement  within  thirty  days  after  he  shall 
have  purchased  the  same,  and  the  owner  of  the  land  shall 
receive  the  rent  due  him,  payable  out  of  the  proceeds  of 
the  sale,  according  to  the  terms  of  the  lease,  down  to  the 
time  of  such  removal. 

3.  All  liens  created  by  this  act  upon  any  land  or  mining 
claim  shall  be  preferred  to  any  lien,  mortgage  or  other  in- 
cumbrance,  which  may  have  attached  to  said  land  or  min 
ing  claim  subsequent  to  the  time  when  the  building  or  other 


534  JUSTICES'  TKEATISE. 

improvement  was  commenced  or  the  materials  were  begun 
to  be  furnished ;  also,  to  any  lien,  mortgage  or  other  in- 
cumbrance,  which  was  unrecorded  at  the  time  when  said 
building  or  other  improvement  was  commenced  or  the  ma 
terials  of  the  same  were  commenced  to  be  furnished ;  and 
all  liens  created  by  this  act  upon  any  building  or  other 
improvement  shall  be  preferred  to  all  prior  liens,  mort 
gages  or  other  incumbrances,  upon  the  land  upon  which 
said  building  or  other  improvement  shall  have  been  con 
structed  or  situated  when  altered  or  repaired ;  and  in  en 
forcing  such  lien,  such  building  or  other  improvement  may 
be  sold  separately  from  said  land,  and  when  so  sold,  the 
purchaser  may  remove  the  same  within  a  reasonable  time 
thereafter,  not  to  exceed  thirty  days,  upon  the  payment  to 
the  owner  of  the  land  of  a  reasonable  rent  for  its  use  from 
the  date  of  his  purchase  to  the  time  of  removal :  provided, 
that  if  such  removal  be  prevented  by  legal  proceedings, 
said  thirty  days  shall  not  begin  to  run  till  the  final  deter 
mination  of  such  proceedings  in  the  court  of  first  resort,  or 
in  the  appellate  court  if  appeal  be  taken. 

4.  Every  building  or  other  improvement  mentioned  in 
the  first  section  of  this  act,  constructed  upon  any  lands 
with  the  knowledge  of  the  owner  or  the  person  having  or 
claiming  any  interest  therein,  shall  be  held  to  have  been 
constructed  at  the  instance  of  such  owner  or  person  having 
or  claiming  any  interest  therein,  and  the  interest  owned  or 
claimed  shall  be  subject  to  any  lien  filed  in  accordance  with 
the  provisions  of  this  act,  unless  such  owner  or  person 
having  or  claiming  an  interest  therein  shall  within  three 
days  after  he  shall  have  obtained  knowledge  of  the  con 
struction,  alteration  or  repair,  or  the  intended  construc 
tion,  alteration  or  repair,  give  notice  that  he  will  not  be 
responsible  for  the  same,  by  posting  a  notice  in  writing  to 
that  effect  in  some  conspicuous  place  upon  said  land  or 
upon  the  building  or  other  improvement  situated  thereon. 

5.  It  shall  be  the  duty  of  every  original  contractor  within 
sixty  days  after  the  completion  of  his  contract,  and  of  eve 
ry  mechanic,  artisan,  machinist,  builder,  lumber-merchant, 
miner,  laborer  or  other  person,  save  the  original  contractor, 
claiming  the  benefit  of  this  act,  within  thirty  days  after  the 


LIENS   OF  MECHANICS  AND  OTHEES.  535 

completion  of  any  building,  mining  claim  or  other  improve 
ment,  or  the  performance  of  any  labor  in  any  mining  claim 
or  after  the  completion  of  the  alteration  or  repair  thereof, 
to  file  with  the  county  recorder  of  the  county  in  which  such 
building  or  other  improvement  or  some  part  thereof,  shall 
be  situated,  a  claim  containing  a  true  statement  of  his  de 
mand,  after  deducting  all  just  credits  and  effects,  with  the 
name  of  the  owner  or  reputed  owner,  if  known,  and  also  the 
name  of  the  person  by  whom  he  was  employed  or  to  whom 
he  furnished  the  materials,  and  also  a  description  of  the 
property  to  be  charged  with  said  lien,  sufficient  for  identi 
fication,  which  claim  shall  be  verified  by  the  oath  of  himself 
or  of  some  other  person. 

6.  The  county  recorder  shall  record  said  claim  in  a  book 
kept  by  him  for  that  purpose,  which  record  shall  be  indexed 
as  deeds  and  other  conveyances  are  required  by  law  to  be 
indexed,  and  for  which  he  shall  receive  the  same  fees  as  are 
allowed  by  law  for  recording  deeds  and  other  instruments. 

7.  In  every  case  in  which  one  claim  shall  be  filed,  under 
the  provisions  of  this  act,  against  two  or  more  buildings, 
mining  claims  or  other  improvements,  owned  by  the  same 
person,  the  person  filing  such  joint  claim  shall  at  the  same 
time  designate  the  amount  due  to  him  on  each  of  such 
buildings,  mining  claims  or  other  improvements ;  otherwise 
such  claim  shall  be  postponed  to  other  lienholders,  and  the 
lien  of  such  claimant  shall  not  extend  beyond  the  amount 
so  designated  as  against  other  creditors  having  liens  by 
judgment,    mortgage   or  otherwise,    upon  either  of    such 
buildings  or  other  improvements  or  upon  the  land  upon 
which  the  same  are  situated:  provided,  that  no  joint  claim 
shall  be  filed  upon  two  or  more  buildings,  unless  they  are 
contiguous  to  or  adjoining  each  other. 

8.  No  lien  provided  for  in  this  act  shall  bind  any  build 
ing,  mining  claim  or  other  improvement,  for  a  longer  pe 
riod  than  ninety  days  after  the  same  shall  have  been  filed, 
unless  suit  be  brought  in  a  proper  court  within  that  time  to 
enforce  the  same,  or  if  a  credit  be  given,  then  ninety  days 
after  the  expiration  of  such  credit;  but  no  lien  shall  be 
continued  in  force  for  a  longer  time  than  two  years  from 
the  time  the  work  is  completed  by  any  agreement  to  give 
credit. 


536  JUSTICES'  TEEATISE. 

9.  Any  person  who  shall  at  the  request  of  the  owner  of 
any  lot  in  any  incorporate  city  or  town,  grade,  fill  in  or 
otherwise  improve,  the  same,  or  the  street  in  front  of  or 
adjoining  the  same,  shall  have  a  lien  upon  such  lot  for  his 
work  done  and  materials  furnished  in  grading,  filling  in  or 
otherwise  improving,  the  same ;  and  all  the  provisions  of 
this  act  respecting  the  securing  and  enforcing  of  mechanics' 
liens  shall  apply  thereto. 

10.  First — Suits  to  enforce  the  liens  created  by  this  act, 
except  those  under  section  fifteen,  shall  be  brought  in  the 
district  courts,  and   the  pleadings,  process,  practice  and 
other  proceedings,  shall  be  the  same  as  in  other  cases :  pro 
vided,  that  where  service  of  summons  may  be  made  under 
the  practice  act  by  publication,  the  time  of  publication, 
where  the  defendant  resides  out  of  or  is  absent  from  the 
state  or  for  any  other  cause,  cannot  be  served  personally 
and  [need]  be  but  once  a  week  for  four  consecutive  weeks, 
and  the  time  for  answering  shall  expire  when  such  publica 
tion  is  complete,  and  if  no  answer  of  such  defendant  iis  then 
filed,  his  default  may  be  entered ;  and,  provided,  also,  that 
the  court  may  in  its  discretion,  in  all  cases  under  this  act, 
instead  of  ordering  publication,  or  may  after  publication, 
appoint  an  attorney  to  appear  for  the  non-resident,  absent 
or  concealed,  defendant  and  conduct  the  proceedings  on 
his  part. 

Second — In  case  the  proceeds  of  any  sale  under  this  act 
shall  be  insufficient  to  pay  all  lienholders  under  it,  the 
liens  of  all  persons  other  than  the  original  contractor  and 
sub-contractors  shall  first  be  paid  in  full,  or  pro  rata,  if  the 
proceeds  be  insufficient  to  pay  them  in  full;  and  out  of  the 
remainder,  if  any,  the  sub-contractors  shall  then  be  paid  in 
full  or  pro  rata,  if  the  remainder  be  insufficient  to  pay  them 
in  full;  and  the  remainder,  if  any,  shall  be  paid  to  the  orig 
inal  contractor ;  and  each  claimant  shall  be  entitled  to  exe 
cution  for  any  balance  due  him  after  such  distribution;  such 
execution  to  be  issued  by  the  clerk  of  the  court  upon  de 
mand,  after  the  return  of  the  sheriff  or  other  officer  making 
the  sale  showing  such  balance  due. 

Third — In  all  suits  under  this  act,  the  court  shall,  upon 
entering  judgment  for  plaintiff,  allow  as  a  part  of  the  costs 


LIENS  OF   MECHANICS  AND   OTHERS.  537 

all  moneys  paid  for  the  filing  and  recording  of  the  lien,  and 
also  a  reasonable  amount  as  attorneys'  fees. 

Fourth — All  suits  to  enforce  any  lien  created  by  this  act 
shall  have  preference  upon  the  calendar  of  the  court  over 
any  civil  suit  already  brought  or  to  be  brought,  except  suits 
to  which  the  state  shall  be  a  party,  and  shall  be  tried  by 
such  court  without  unnecessary  delay. 

Fifth — In  all  suits  to  enforce  any  lien  created  by  this  act, 
all  persons  personally  liable  and  all  lienholders  whose 
claims  have  been  filed  for  record  under  the  provisions  of 
section  five  of  this  act  shall,  and  all  other  persons  inter 
ested  in  the  matter  in  controversy  or  in  the  property  sought 
to  be  charged  with  the  lien  may,  be  made  parties ;  but 
such  as  are  not  made  parties  shrill  not  be  bound  by  such 
proceedings. 

11.  Any  contractor  shall  be  entitled  to  recover  upon  a 
lien  filed  by  him  only  such  amount  as  may  be  due  to  him 
according  to  the  terms  of  his  contract,  after  deducting  all 
claims  of  other  parties  for  work  done  and  materials  fur 
nished  as  aforesaid ;  and  in  all  cases  where  a  lien  shall  be 
filed  under  this  act  for  work  done  or  materials  furnished 
to  any  contractor,  he  shall  defend  any  action  brought  there 
upon  at  his  own  expense ;  and  during  the  pendency  of  such 
action,  the  owner  may  withhold  from  the  contractor  the 
amount  of  money  for  which  such  lien  is  filed  ;  and  in  case 
of  judgment  against  the  owner  or  his  property  upon  the 
lien,  the  s'aid  owner  shall  be  entitled  to  deduct  from  any 
amount  due  or  to  become  due  by  him  to  the  contractor,  the 
amount  of  such  judgment  and  costs ;  and  if  the  amount  of 
such  judgment  and  costs  shall  exceed  the  amount  due  by 
him  to  the  contractor,  or  if  the  owner  shall  have  settled 
with  the  contractor  in  full,  he  shall  be  entitled  to  recover 
back  from  the  contractor  any  amount  so  paid  by  him,  the 
said  owner,  in  excess  of  the  contract  price,  and  for  which 
the  contractor  was  originally  the  party  liable. 

12.  Whenever  any  mechanic,  artisan,  machinist,  builder, 
lumber-merchant,  contractor,  miner,  laborer  or  other  per 
son,  shall  have  furnished  or  procured  any  materials  for  use 
in  the  construction,  alteration  or  repair,  of  any  building  or 
other  improvement,  such  materials  shall  not  be  subject  to 

68 


538  JUSTICES'  TEEATISE. 

attachment,  execution  or  other  legal  process,  to  enforce  any 
debt  due  by  the  purchaser  of  such  materials,  except  a  debt 
due  for  the  purchase-money  thereof,  so  long  as  in  good  faith 
the  same  are  about  to  be  applied  to  the  construction,  alter 
ation  or  repair,  of  such  building,  mining  claim  or  other 
improvement. 

13.  Nothing  contained  in  this  act  shall  be  construed  to 
impair  or  affect  the  right  of  any  person  to  whom  any  debt 
may  be  due  for  work  done  or  materials  furnished,  to  main 
tain  a  personal  action  to  recover  said  debt  against  the  per 
son  liable  therefor,  and  the  person  bringing  such  personal 
action  may  take  out  an  attachment  therefor,  notwithstand 
ing  his  lien,  and  in  his  affidavit  to  procure  an  attachment 
need  not  state  that  his  demand  is  not  secured  by  a  lien; 
but  the  judgment,  if  any,  obtained  by  the  plaintiff  in  such 
personal  action  shall  not  be  construed  to  impair  or  merge 
any  lien  held  by  said  plaintiff  under  this  act :  provided,  only, 
that  any  money  collected  on  said  judgment  shall  be  cred 
ited  on  the  amount  claimed  under  such  lien  in  any  action 
brought  to  enforce  the  same  in  accordance  with  the  provi 
sions  of  this  act.^ 

14.  The  words  "building  or  other  improvement,"  when 
ever  the  same  are  used  in  this  act,  shall  be  held  to  include 
and  apply  to  any  wharf,  bridge,  ditch,  flume,  tunnel,  fence, 
machinery,  railroad,  ^wagon-road,  aqueduct  to   create  hy 
draulic  power  or  for  mining  or  other  purposes,  and  all  oth 
er  structures  and  superstructures,  whenever  the  same  can 
be  made  applicable  thereto;  and  the  words  "construction, 
alteration  or  repair,"  whenever  the  same  are  used  therein, 
shall  be  held  to  include  partial  construction  and  all  repairs 
done  in  and  upon  any  building  or  other  improvement. 

15.  Any  mechanic,  artisan  or  laborer,  who  shall  make, 
alter  or  repair,  any  article  of  personal  property,  at  the  re 
quest  of  the  owner  or  legal  possessor  of  such  property, 
shall  have  a .  lien  on  the  same  for  his  just  and  reasonable 
charges  for  work  done  and  materials  furnished,  and  may 
retain  possession  of  the  same  until  such  just  and  reasona 
ble  charges  shall  be  paid;  and  if  not  paid  within  the  space 
of  two  months  after  the  work  shall  be  done,  such  mechanic 
or  other  person  may  proceed  to  sell  the  property  by  him  so 


LIENS  OP  MECHANICS  AND  OTHEKS.          539 

made,  altered  or  repaired,  at  public  auction,  by  giving  ten 
days'  public  notice  of  such  sale  by  advertising  in  some  news 
paper  published  in  the  county  in  which  the  work  was  done-, 
or  if  there  be  no  newspaper  published  in  such  county,  then 
by  posting  up  notices  of  such  sale  in  three  of  the  most 
public  places  in  the  town  where  such  work  was  done  for 
ten  days  previous  to  such  sale,  and  the  proceeds  of  such 
sale  shall  be  applied  to  the  discharge  of  such  lien  and  the 
cost  of  keeping  and  selling  such  property,  and  the  remain 
der,  if  any,  shall  be  paid  over  to  the  owner  thereof.  Pub. 
Laws,  1868,  589. 

SEC.  2.  The  following  is  a  form  of  claim  of  lien  by  con 
tractor  : 

Form  of  Claim  of  Lien  by  Contractor. 

State  of   ,  ) 

county  of j 

I  ,  being  duly  sworn,  depose  and  say,  that  as  carpenter,  builder 

and  contractor,  I  did  erect  and  construct  a  certain  ....  building  [name  the 
Lind  of  building],  which  said  ....  building,  with  the  land  on  which  the  same 
is  situated  and  adjacent  thereto,  was  on  the  ....  day  of  .  . . .,  18. .  [which 
is  the  day  on  which  I  commenced  said  building],  and  now  is  the  property 

of ,  which  said  property  is  situate  in  the  county  of  . . . . ,  state  of 

. . . .,  and  described  as  follows,  to  wit:  [here  describe  the  property]. 

That  it  is  my  intention  to  avail  myself  of  the  act  of  the  legislature  of  the 
state  of  . . . .,  entitled  "An  act  for  securing  liens  of  mechanics  and  others," 

approved ,  18 . .  ;  and  that  it  is  my  intention  to  claim  and  hold  such 

lien  upon  the  building  so  erected  as  aforesaid,  together  with  a  convenient 
space  about  the  same  with  the  said  ....  building  situated  thereon,  and  upon 
the  interest  of ,  the  person  with  whom  I  contracted  therein. 

That  the  same  was  commenced  on  or  about  the day  of  . . . . ,  A.D  18 . . , 

and  that  ....  days  have  not  elapsed  since  the  completion  thereof. 

I  further  state  that  said is  indebted  to  me  as  such  contractor 

and  builder  in  the  sum  of dollars,  ....  of  the  United  States,  for 

work  and  labor  on  said  building,  as  per  agreement  [state  whether  the  agree 
ment  was  in  writing  or  otherwise],  and  he  is  also  and  in  addition  to  said  sum 

of  money  indebted  to  me  in  the  further  sum  of dollars  for  extra 

work  and  labor  [if  any  was  done,  state  generally  the  work  done],  and  in  the 
further  sum  of dollars  for  [here  state  the  materials  furnished],  fur 
nished  by  me  in  the  construction  of  said  ....  building  above  described  and 
situated  as  aforesaid,  which  said  materials  and  extra  work  furnished,  and  did, 

at  the  instance  and  request  of  said ,  making  in  the  aggregate 

dollars,  which  sum  of dollars,  by  ....  agreement,  was 

and  is  payable  in  the  ....  of  the  United  States ;  that  of  said  sum  of  money 
I  have  received dollars  and  hereby  acknowledge  the  receipt  thereof. 

I  further  state  that  the  sum  of dollars,  in  ....  of  the  United 

States,  is  now  due  and  unpaid  from  said to  me,  and  that  there  are 


540  JUSTICES'  TKEATISE. 

no  offsets  to  the  same  or  any  part  thereof,  and  that  this  statement  is  made 
after  deducting  all  just  credits  and  offsets  to  ....  said  claim. 


Subscribed  and  sworn  to  this day  of ,  A.D.  18 . . ,  before  me. 


SEC.  3.  The  following  is  a  form  of  claim  of  lien  by  ma 
terial-man  : 

.    Form  of  Claim  of  Lien  by  Material-man. 

State  of  I  gs 

county  of   ,  [  • 

I, ,  being  duly  sworn,  depose  and  say,  that  from  the day  of 

,  18 . . ,  to  the day  of ,  18 . . ,  I  did  furnish  materials  for  the  con 
struction  of  a  certain  [here  describe  the  building,  as  whether  it  was  a  dwell 
ing-house  or  oth^r  stmcture],  which  said  building  with  the  land  on  which 

the  same  is  situated  and  adjacent  thereto  was,  on  said  day  of  , 

18. .  [day  first  mentioned],  and  now  is,  the  property  of ,  which 

said  property  is  situate  in  the  county  of ,  state  of ,  and  described  as 

follows,  to  wit:  [describe  the  property]. 

That  it  is  my  intention  to  avail  myself  of  the  act  of  the  legislature  of  the 

state  of ,  entitled  "An  act  for  securing  liens  of  mechanics  and  others," 

approved ,  18 . .  ;  and  that  it  is  my  intention  to  claim  and  hold  such 

lien  upon  the  property  aforesaid  together  with  a  convenient  space  about  the 

same  with  the  building  situated  thereon,  and  on  the  interest  of 

therein. 

That  I  commenced  furnishing  materials  on  or  about  the day  of , 

A.D.  18. .,  and  that days  have  not  elapsed  since  the  completion  of  said 

....  building. 

I  further  state  that  said ,  as  such  owner  [or .' .  as  con 
tractor]  is  indebted  to  me  in  the  sum  of dollars, of  the  United 

States,  for  materials,  to  wit:  [here  describe  the  materials  furnished] ;  that 

said  materials  were  by  me  furnished  in  the  construction  of  said building 

above  described  and  situated  as  aforesaid,  which  materials  I  furnished  at  the 

instance  and  request  of  said [or,  said  contractor,  as  the  case  may 

be],  which  sum  of dollars,  by  agreement  with  him  was  and  is  pay 
able  in  the of  the  United  States. 

I  further  state  that  the  sum  of dollars  in of  the  United 

States  is  now  due  and  unpaid  from  said [or,  contractor]  to  me, 

and  that  there  ar.e  no  offsets  to  the  same  or  any  part  thereof,  and  that  this 
statement  is  made  after  deducting  all  just  credits  and  offsets  to  said  claim. 

Subscribed  and  sworn  to  this day  of ,  18 . . ,  before  me. 


SEC.  4.    The  following  is  a  form  of   claim   of  lien  by 
journeyman  carpenter: 

Form  of  Claim  of  Lien  by  Journeyman  Carpenter. 

State  of  ,  [  ,( 

county  of  J  ss' 

I,   ,  being  duly  sworn,  depose  and  say,  that  I  have  performed 


LIENS  OF   MECHANICS  AND  OTHEES.  541 

labor  in  the  construction  [or,  "repair,"  or,-  "alteration,"  as  the  case  maybe] 

for ,  as  journeyman  carpenter  in  the  erection,  construction  [or, 

"repairing,"  etc.]  of  a  certain  building  [describe  it  byname],  which  said 
building,  with  the  land  on  which  the  same  is  situated  and  adjacent  thereto, 

was  on  said  ....  day  of  . . . . ,  18  . .   and  now  is  the  property  of 

which  said  property  is  situate county  of ,  state  of ,  and 

described  as  follows,  to  wit:  [here  describe  its  location]. 

That  it  is  my  intention  to  avail  myself  of  the  act  of  the  legislature  of  the 

state  of ,  entitled  "An  act  for  securing  liens  of  mechanics  and  others," 

approved  ....  day  of '....,  18  . . ;  and  that  it  is  my  intention  to  claim  and 
hold  such  lien  upon  the  property  aforesaid,  together  with  a  convenient  space 
about  the  same  with  the  building  situated  thereon,  and  on  the  interest  of 
therein. 

That  the  same  was  commenced  on  or  about  the  ....  day  of  ....  A.D.  18. ., 
and  that  thirty  days  have  not  elapsed  since  the  completion  thereof.     I 

further  state  that is  indebted  to  me  in  the  sum  of dollars, 

of  the  United  States,  for  work  and  labor  as  a  journeyman  carpenter 

[here  state  the  number  of  days  and  the  price  per  day],  which  work  and  labor 
was  done  and  performed  by  me  in  the  construction  of  said  building  above 
described,  and  situated  as  aforesaid,  which  said  work  and  labor  was  done 

and  performed  at  the  instance  and  request  of  said [or  " , 

principal  contractor  "]  which  said  sum  of  ....  dollars,  by  ....  agreement 
was  and  is  payable  in  the  ....  of  the  United  States, 

I  further  state  that  the  sum  of dollars  in of  the  United  States  is 

now  due  and  unpaid  from  said to and  that  there  are  no 

offsets  to  the  same  or  any  part  thereof,  and  that  this  statement  is  made  after 
deducting  all  just  credits  and  offsets  to  ....  said  claim. 


Subscribed  and  sworn  to  this  ....  day  of ,  A'.D.  18. .,  before  me. 


SEC.  5.  If  the  owner  of  land  wishes  to  avoid  liability  of 
a  lien  on  his  land,  upon  which  a  lessee  or  other  person  is 
about  to  place  improvements,  under  section  four  (ante),  he 
may  do  so  by  giving  the  following  notice : 

To  all  Whom  it  may  Concern. 

I, ,  am  the  owner  of  the  following  described  land,  in  the  county 

of  . . . . ,  state  of  ....  [here  describe  the  land,  or  if  you  have  only  an  interest 
in  the  land,  instead  of  the  words  "am  owner  of  "  say  "claim  an  interest 

in  "]  and  that  I  have  within  the  last days  obtained  knowledge  that  the 

following  construction  ["  alteration  "  or,  "  repair  "]  has  been  commenced  to 
be  made  [or  "  has  been  made  "  or,  "is  about  to  be  made  "]  viz:  [here  de 
scribe  it].  I  hereby  declare  I  will  not  be  responsible  for  such  construction, 
["alteration,"  or  "repair"];  that  the  same  is  done  without  my  consent  or 
authority,  and  that  I  will  oppose  any  attempt  to  make  the  same  a  lien  upon 
the  land  and  premises  above  described. 


Dated  this  ....  day  of  .....  18  .. 


542  JUSTICES'  TREATISE. 

SEC.  6.  Advertisement  by  mechanic  to  sell  personal 
property  under  section  fifteen  (ante) : 

Auction  'Sale. 

Notice  is  hereby  given  that  I  will  expose  for  sale  at  public  auction  to  the 
highest  bidder  [state  particularly  the  tinie  and  place  of  sale]  a  certain  wagon 
[or,  other  article — describe  the  article]  which  said  wagon  or  other  thing,  was 

by ,  the  owner  thereof,  left  with  me  as  wagon-maker  [or,  other 

artisan]  to  be  repaired,  on  or  about  the day  of ,  18  . . ;  that  I  made 

the  necessary  repairs  to  said  wagon  [or,  name  the  article]  at  the  instance 

and  request  of  said ;  that  said  repairs  are  justly  and  reasonably 

worth  the  sum  of  ....  dollars,  and  were  completed  on  the  ....  day  of  . . . . , 

18  . . ,  when  said  sum  so  became  due  to  me  from  said ,  for  said 

'repairs;  that  the  said ,  though  requested,  has  not  paid  said  sum  or 

any  part  thereof,  and  said  wagon  has  ever  since  the  completion  of  said 
repairs  and  for  more  than  ....  mouths  since  the  said  work  was  done,  been 
retained  in  my  possession  by  virtue  of  my  hen  thereon  for  said  repairs,  and 
the  proceeds  of  said  sale  are  to  be  applied  to  the  discharge  of  said  lien,  and 
of  my  costs  of  keeping  and  selling  said  property.  

Dated  . . . .  day  of  . . . .,  18  . . 

SEC.  7.  The  proprietors  of  stables  and  ranches  or  farms, 
shall  have  a  lien  on  all  live  stock  pastured,  kept  or  fed,  by 
them  under  contract  with  the  owners  thereof,  for  the  amount 
and  value  of  the  care,  feed  or  pasturage,  of  such  live  stock, 
and  shall  be  entitled  to  recover  and  hold  possession  of  such 
live  stock  until  the  amount  of  such  lien  shall  be  paid.  Such 
proprietors  shall  have  power  to  proceed  and  collect  such 
debts  and  foreclose  such  liens  in  the  same  manner  as  other 
debts  and  liens  are  collected  and  foreclosed  upon  other  per 
sonal  property  in  civil  actions.  Pub.  Laws,  1860,  723. 

[Notice  similar  to  last  form  (ante  Sec.  6),  using  the  words  "  proprietor  of 
stable,  ranch  or  farm,"  as  the  case  may  be,  instead  of  the  name  of  a  trade, 
and  describe  the  stock,  and  the  character  of  keeping,  and  the  place  where 
the  same  were  kept,  will  answer.  ] 

SEC.  8.  Possession  of  the  goods  is  necessary  to  create 
the  lien,  and  the  right  does  not  extend  to  debts  which 
accrued  before  the  character  of  factor  commenced,  nor  where 
the  goods  do  not  in  fact  come  to  the  factor's  hands,  even 
though  he  may  have  accepted  bills  upon  the  faith  of  the  con 
signment,  and  paid  part  of  the  freight.  Possession  is  not 
only  essential  to  the  creation  but  also  to  the  continuance  of 
the  lien.  The  receipt  of  a  bill  of  lading  by  a  factor  to  whom 
his  principal  is  indebted,  will  not  amount  to  constructive 


LIENS  OF  MECHANICS  AND   OTHERS.  543 

possession  of  such  goods,  nor  give  a  right  of  lien  on  them  for 
the  balance  of  accounts.  The  goods  themselves  must  come 
to  the  factor's  hands  in  order  that  the  lien  should  attach, 
and  the  owner  may  prevent  it  from  attaching  either  by  sell 
ing  the  goods  before  this  occurs  to  a  third  party  or  by 
revoking  the  factor's  authority,  and  intrusting  them  to  an 
other  person.  1  Col.  80,  81. 

SEC.  9.  The  master  of  a  ship  has  a  lien  upon  the  goods 
shipped  for  the  freight  agreed  to  be  paid  thereon,,  and  is 
not  bound  to  part  with  any  of  them  until  the  whole  freight 
is  paid.  Offering  to  give  or  giving  good  security  is  not  pay 
ment.  Delivery  of  a  part  of  the  goods  shipped  to  one  con 
signee  does  not  defeat  a  lien  upon  the  remainder  for  the 
whole  freight.  The  delivery  of  goods  and  the  payment  of 
freight  are  concurrent  acts,  and  neither  party  is  obliged  to 
perform  his  part  of  the  contract  without  the  other  being 
ready  to  perform  the  correlative  act.  The  master  cannot 
require  payment  without  a  readiness  to  deliver,  and  the 
consignee  cannot  demand  delivery  without  a  readiness  to 
pay.  1  Col.  44. 

SEC.  10.  The  general  principle  is,  that  where  the  law 
compels  a  person — such  as  an  innkeeper  or  common  carrier, 
to  take  the  care  and  custody  of  goods,  he  shall  have  a  lien 
on  the  property  for  his  reasonable  and  just  charges  there 
for  ;  and  the  same  rule  applies  to  a  person  who  by  his  labor 
and  skill  has  imparted  an  additional  value  to  the  goods. 
But  one  who  merely  provides  food  and  takes  the  care  of  an 
animal,  as  an  agistor  or  livery-stable  keeper,  has  no  lien  on 
the  property,  unless  there  be  a  special  agreement  to  that 
effect.  An  agistor  of  cattle  is  under  no  legal  obligations  to 
take  the  charge  of  or  keep  any  cattle  that  may  be  brought 
to  him  for  that  purpose.  He  is  at  perfect  liberty  when  he 
receives  stock  to  keep  or  impose  such  terms  and  conditions 
as  he  may  deem  proper;  and  he  may  require  an  agreement 
that  he  shall  have  a  lien  upon  the  animals  for  his  reasona 
ble  charges  or  for  the  agreed  price,  if  he  shall  deem  it 
necessary  for  his  security.  That  class  of  bailees,  however, 
who  are  required  by  law  to  take  the  charge  and  custody  of 
and  to  keep  animals  for  others,  have  no  right  to  impose 
conditions  upon  those  who  employ  them;  and  the  law, 


544  JUSTICES'  TREATISE. 

therefore,  gives  them  a  lien  upon  the   property  for  their 
security.     23  Col.  364,  365. 

SEC.  11.  If  by  the  original  contract  made,  the  carriers 
waived  any  lien  for  freight,  and  instead  of  leaving  their  pay 
ment  to  the  implication  of  law,  they  contracted  to  give  a  credit 
for  the  freight,  then,  whether  they  had  parted  with  the  pos 
session  or  retained  it,  they  must  look  only  to  the  contract 
they  had  entered  into  for  their  security.  Where  it  appears 
clearly  from  a  charter  party  that  the  intention  of  the  owner 
of  the  ship  and  the  charterer  is,  that  the  former  shall  have 
no  lien  on  the  freight  but  shall  give  a  personal  credit  to  the 
charterer,  the  former  loses  his  right  of  lien  on  the  cargo, 
and  can  look  only  to  the  personal  responsibility  of  the  char 
terer  for  the  payment  of  the  hire  of  the  vessel.  1  Cal. 
420,  423. 

SEC.  12.  A  right  to  detain  goods  until  the  freight  there 
on  is  paid  grows  out  of  the  usage  of  trade.  1  Cal.  424. 

SEC.  13.  The  vendor  of  real  estate  has  an  equitable  lien 
on  the  land  sold  for  the  payment  of  the  purchase  money, 
even  where  the  title  has  been  fully  conveyed,  if  he  has  taken 
no  security  for  its  payment;  and  the  rights  of  a  vendor  who 
has  not  conveyed  the  title  cannot  be  of  less  efficacy.  It  is 
but  a  just  precaution  on  his  part  that  he  should  withhold 
the  title  until  the  purchase  money  is  fully  paid,  and  the  law 
will  not  deprive  him  of  the  only  security  which  he  has. 
His  position  is  analogous  to  that  of  a  mortgagee,  and  he 
may  enforce  his  rights  in  the  same  manner.  2  Cal.  142, 
143.  A  vendor  of  real  estate  who  makes  no  conveyance, 
but  gives  a  bond,  conditioned  for  the  execution  of  a  con 
veyance  on  payment  of  the  purchase  money  by  the  vendee, 
has  an  equitable  lien  on  the  land  for  the  purchase  money, 
and  holds  the  legal  title  as  a  security  for  the  enforcement  of 
his  lien.  4  Cal.  111. 


STATUTE   OF  LIMITATIONS.  545 


CHAPTER    LXIII. 
STATUTE  OF  LIMITATIONS. 

SECS.  SECS. 

STATUTE 1-  4  |  DECISIONS  RESPECTING 5 

Statute. 

SECTION  1.  Actions  other  than  for  the  recovery  of  real 
property  can  only  be  commenced  as  follows : 

Within  five  years :  An  action  upon  a  judgment  or  decree 
of  any  court  of  the  United  States,  or  of  any  state  or  terri 
tory  within  the  United  States. 

Within  four  years :  An  action  upon  any  contract,  obliga 
tion  or  liability,  founded  upon  an  instrument  of  writing, 
except  those  mentioned  in  the  preceding  section. 

Within  three  years:  1st.  An  action  upon  a  liability  crea 
ted  by  statute  other  than  a  penalty  or  forfeiture.  2d.  An 
action  for  trespass  upon  real  property.  3d.  An  action  for 
recovery  of  personal  property.  4th.  An  action  for  relief  on 
the  ground  of  fraud — the  cause  of  action  in  such  case  not  to 
be  deemed  to  have  accrued  until  the  discovery  by  the 
aggrieved  party  of  the  facts  constituting  the  fraud. 

Within  two  years :  1st.  Action  upon  a  contract,  obliga 
tion  or  liability,  not  founded  upon  an  instrument  of  writing, 
and  on  an  open  account  for  goods,  wares  and  merchandise, 
sold  and  delivered,  and  for  any  article  charged  in  a  store 
account.  2d.  *A.n  action  against  a  sheriff,  coroner  or  con 
stable,  upon  a  liability  incurred  by  the  doing  of  an  act  in 
his  official  capacity  and  in  virtue  of  his  office,  or  by  the 
omission  of  an  official  duty,  including  the  non-payment  of 
of  money  collected  upon  an  execution ;  but  this  section  shall 
not  apply  to  an  action  for  an  escape. 

Within  one  year:  1st.  An  action  upon  a  statute  for  a 
penalty  or  forfeiture,  where  the  action  is  given  to  an  indi 
vidual  or  to  an  individual  and  the  state,  except  where  the 
statute  imposing  it  prescribes  a  different  limitation.  2d. 
An  action  for  libel,  slander,  assault,  battery  or  false  im 
prisonment.  3d.  An  action  upon  a  statute  for  a  forfeiture 
or  penalty  to  the  people  of  this  state.  4th.  An  action 
69 


546  JUSTICES'  TREATISE. 

against  a  sheriff  or  other  officer  for  the  escape  of  a  prisoner 
arrested  or  imprisoned  on  civil  process. 

SEC.  2.  In  an  action  brought  to  recover  a  balance  due 
upon  a  mutual,  open  and  current,  account  where  there  have 
been  reciprocal  demands  between  the  parties,  the  cause  of 
action  shall  be  deemed  to  have  accrued  from  the  time  of 
the  last  item  proved  in  the  account  on  either  side. 

SEC.  3.  An  action  for  relief,  not  hereinbefore  provided 
for,  must  be  commenced  within  four  years  after  the  cause 
of  action  shall  have  accrued. 

SEC.  4.  The  above  limitations  shall  apply  to  actions 
brought  in  the  name  of  the  state,  or  for  the  benefit  of  the 
state,  in  the  same  manner  as  to  actions  by  private  parties. 
Gen.  Laws,  4359-4362. 

SEC.  5.  Statutes  of  limitation  have  been  properly  de 
nominated  "statutes  of  repose,"  because  the  law,  for  the 
purpose  of  preventing  litigation,  has  wisely  determined  that 
there  should  be  some  period  affixed  beyond  which  a  party 
ought  not  to  be  allowed  to  assert  stale  demands,  and  that 
the  presumption  of  payment  or  of  title  ought  to  arise  after 
he  had  neglected  to  assert  his  right  for  a  certain  length  of 
time.  These  statutes  are  designed  to  affect  the  remedy  and 
not  the  right  or  contract;  they  do  not  enter  into  the  con 
tract  as  a  part  of  the  law  thereof.  It  would  be  inconsistent 
with  sound  morality  and  wise  legislation  to  suppose  that  it 
was  ever  intended  that  when  a  party  gave  his  obligation  to 
pay  a  particular  debt  he  was  presumed  to  have  had  in  his 
mind  a  particular  period  of  time  beyond  which,  if  he  pro 
tracted  his  obligation,  his  liability  would  cease.  They  have 
no  retrospect  beyond  their  passage.  7  Cal.  3-5. 

SEC.  6.  A  mere  naked  receipt,  in  writing,  acknowledging 
the  delivery  of  money  is  not  a  contract,  and  does  not  im 
port  a  promise,  obligation  or  liability,  and  an  action  upon 
it  is  therefore  barred  by  the  statute  of  limitations  in  two 
years.  A  receipt  or  acknowledgment,  in  writing,  for  money, 
which  also  contains  a  clause  stating  that  the  money  received 
is  to  be  applied  to  the  account  of  the  person  from  whom 
received,  partakes  of  the  double  nature  of  a  receipt  and 
contract,  and  shows  upon  its  face  a  liability  to  account,  and 
an  action  upon  it  is  not  barred  by  the  statute  of  limitations 
until  four  years  have  expired.  24  Cal.  322. 


STATUTE  OF  LIMITATIONS.  547 

SEC.  7.  The  statute  of  limitations  requires  an  action  on 
a  judgment  to  be  brought  within  five  years;  but  when  a 
judgment  is  rendered,  payable  in  installments,  the  time  be 
gins  to  run  from  the  period  fixed  for  the  payment  of  each 
installment  as  it  becomes  due.  23  Col.  352. 

SEC.  8.  A  foreign  judgment  is  not  "  a  contract,  obliga 
tion  or  liability,  for  the  payment  of  money,  founded  on  an 
instrument  of  writing  executed  out  of  this  state,"  within  the 
meaning  of  the  statute  of  limitations.  The  act  of  1852  does 
not  alter  the  time,  as  provided  in  the  act  of  1850,  for  com 
mencing  suits  upon  this  class  of  liabilities.  4  Cal.  287. 

SEC.  9.  Judgments  recovered  in  the  courts  of  this  state 
are  within  the  first  subdivision  of  the  seventeenth  section 
of  the  limitation  act,  and  actions  thereon  are  barred  by  the 
lapse  of  five  years  from  the  time  they  are  rendered.  20 
Cal  211. 

SEC.  10.  Where  accounts  bear  upon  their  face  the  words, 
"audited  and  approved,"  and  certified  to  be  correct,  such 
words  are  sufficient  to  create  them  instruments  of  writing, 
within  the  meaning  of  the  statute.  Such  instruments  are 
not  barred  by  that  portion  of  the  statute  of  limitations 
applying  to  accounts.  5  Cal  57,  58. 

SEC.  11.  They  are  not  intended  to  protect  a  party  who 
has  by  fraudulent  concealment  delayed  the  assertion  of  a 
right  against  him  until  after  the  expiration  of  the  period 
limited  by  the  statute.  All  the  exceptions  specified  in  the 
statute  which  prevent  its  running  are  cases  where  a  party 
is  not  in  a  situation  to  assert  fully  his  rights.  The  reason 
of  those  exceptions  would  seem  to  apply  with  equal  force  to 
a  case  of  fraudulent  concealment.  In  all  cases  a  fraudulent 
concealment  of  the  fact,  upon  the  existence  of  which  the 
cause  of  action  accrues,  is  a  good  answer  to  the  plea  of  the 
statute  of  limitations.  The  fraudulent  concealment  may  be 
established  by  proof  on  the  trial.  If  one  is  silent  when  he 
should  speak,  justice  will  compel  him  to  silence  when  he 
would  speak.  8  Cal  458,  461,  467. 

SEC.  12.  Statutes  of  limitation  do  not  act  retrospectively; 
they  do  not  begin  to  run  until  they  are  passed,  and  conse 
quently  cannot  be  pleaded  until  the  period  fixed  by  them 
has  fully  run  since  their  passage.  6  Cal  433.  When  plaint- 


548  JUSTICES'  TREATISE. 

iff  deposits  money  with  defendant,  to  be  loaned  out  from 
time  to  time,  the  interest  to  be  collected,  and  principal  and 
interest  held  by  him  for  plaintiff  until  called  for,  there  is  a 
continuous  trust,  and  the  statute  of  limitations  does  not 
begin  to  run  in  favor  of  defendant  until  after  demand  made 
by  plaintiff.  Baker  vs.  Joseph,  16  Cal.  176. 

SEC.  13.  "Where  D.  had  a  running  account  with  L.  from 
1838  to  1849,  at  which  time  L.  died  intestate  and  no  ad 
ministration  was  had  on  his  estate  until  1857;  and  D.  with 
in  one  year  after  the  granting  of  letters  of  administration 
commejiced  his  suit  on  said  account  against  the  estate: 
Held,  that  the  suit  was  commenced  in  time.  The  fact  that 
a  long  period  intervened  between  the  death  and  the  admin 
istration  taken  on  the  estate  can  make  no  difference.  10 
Cal.  386. 

SEC.  14.  A  note  not  due  at  the  death  of  the  maker  was 
presented  to  the  administrator  of  his  estate  March  5th, 
1859,  and  rejected,  and  suit  brought  thereon  March  12th, 
1859 — letters  of  administration  having  issued  December 
4th,  1856,  and  no  notice  to  creditors  to  present  their  claims 
having  been  published:  Held,  that  the  note  is  not  barred 
by  the  statute  of  limitations.  The  statute  of  limitations,  as 
a  rule,  does  not  begin  to  run  when  no  administration  exists 
on  the  estate  of  the  deceased  at  the  time  the  cause  of  action 
accrued.  The  twenty-fourth  section  of  the  limitation  act  of 
1850  applies  only  to  cases  where  the  statute  has  commenced 
to  run.  The  object  of  this  section  is  not  to  curtail  but  to 
prolong  the  period  for  suing  in  the  given  category.  19  Cal. 
85.  . 

SEC.  15.  In  actions  brought  on  promises  made  by  infants 
and  ratified  after  they  came  of  age,  on  promises  which  have 
been  renewed  after  the  statute  of  limitations  has  furnished  a 
bar,  and  on  unconditional  promises  by  discharged  insolvent 
debtors  and  bankrupts  to  pay  debts  from  which  they  have 
been  discharged,  the  plaintiff  may  declare  on  the  original 
promise;  and  where  infancy,  the  statute  of  limitations  or  a 
discharge  in  insolvency  or  bankruptcy,  is  pleaded  or  given 
in  evidence  as  a  defense,  the  new  promise  may  be  replied 
or  given  in  evidence  in  support  of  the  promise  declared  on; 
a  replication  alleging  such  new  promise  is  not  a  departure 


STATUTE  OF  LIMITATIONS.  549 

and  evidence  thereof  is  not  irrelevant.  A  note,  promise  or 
debt,  is  not  destroyed  by  a  discharge  in  bankruptcy.  If  it 
were,  it  not  only  could  not  be  renewed  or  revived,  but 
could  not  be  a  consideration  for  a  new  promise.  Yet  noth 
ing  is  clearer  than  that  the  old  debt  is  a  sufficient  consid 
eration  for  such  promise.  The  new  promise  operates  as  a 
waiver,  by  the  promisor,  of  a  defense  with  which  the  law 
has  furnished  him  against  an  action  on  the  old  promise  or 
demand.  19  CaL  484. 

SEC.  16.  The  true  theory  of  the  statute  is  this:  The  ac 
knowledgment  or  promise  is  incorporated  with  the  terms  of 
the  original  contract,  and  both  taken  together  constitute  a 
new  contract.  By  the  legitimate  operation  of  the  statute, 
the  original  debt  is  paid  when  the  time  fixed  by  the  act  ex 
pires.  In  making  the  original  contract,  the  parties  incor 
porated  into  it  the  terms  of  the  statute,  without  any  express 
stipulation  to  that  effect.  Under  the  terms  of  the  contract 
as  controlled  by  the  existing  law,  the  debt  is  paid  by  the 
failure  of  the  creditor  to  sue  within  the  time  agreed  upon; 
but  the  original  debt  being  a  good  moral  consideration  is 
sufficient  to  support  a  new  contract.  9  Col.  92,  93. 

SEC.  17.  A  part  payment  indorsed  upon  a  promissory 
note,  whether  made  before  or  after  the  expiration  of  the 
period  fixed  by  the  statute  of  limitations,  does  not  avoid  the 
bar  of  the  statute.  To  take  a  contract  out  of  the  statute 
there  must  be  an  acknowledgment  or  new  promise  con 
tained  in  some  writing  signed  by  the  party  to  be  charged 
thereby.  22  Gal.  100. 

SEC.  18.  It  was  formerly  held  that  statutes  of  limitation 
proceeded  upon  a  presumption  of  payment,  and  that  the 
effect  of  an  acknowledgment  was  to  rebut  this  presumption 
and  place  the  debt  upon  its  original  footing.  This  view  is 
now  exploded,  and  the  statute  is  universally  regarded  as  one 
of  repose,  the  benefit  of  which  may  be  relinquished  by  the 
party  interested,  but  cannot  be  taken  from  him  without  his 
consent.  If  two  or  more  persons  are  bound,  the  same  pro 
tection  is  afforded  to  each,  and  an  acknowledgment  by  one 
is  not  available  against  another,  unless  he  had  authority  to 
make  it,  either  expressly  given  or  resulting  from  the  rela 
tion  of  the  parties.  The  effect  of  the  statute  in  this  respect 


550  JUSTICES'  TREATISE. 

is  perfectly  well  settled,  and  it  is  immaterial,  of  course, 
whether  the  original  liability  was  personal  and  direct  or  re 
sulted  incidentally  from  a  charge  upon  property.  In  cases  of 
personal  liability,  the  doctrine  as  we  have  stated  it,  is  con 
clusively  established,  and  the  principle  is  equally  applica 
ble  where  an  attempt  is  made  to  enforce  a  security.  21  Cal. 
502. 


CHAPTER   LXIV. 

LIQUIDATION  OF  DAMAGES. 

SECTION  1.  The  cases  upon  this  subject — liquidated 
damages — are  numerous,  and  it  is  difficult  to  deduce  from 
them  any  certain  and  definite  rule.  In  fact,  the  transactions 
of  individuals  are  so  various  and  the  circumstances  of  many 
cases  so  peculiar,  that  no  certain  rule  can  be  adopted  for 
all  cases.  But,  from  the  decisions,  the  following  results 
seem  to  be  substantially  correct: 

1st.  When  the  party  stipulates  to  pay  a  stated  sum  for  a 
given  period  of  time  during  the  continuance  of  the  failure, 
then  the  damages  are  to  be  considered  as  liquidated. 

2d.  When  the  agreement  is  not  to  carry  on  trade  at  a 
particular  place,  not  to  run  a  stage  coach  on  a  particular 
road,  not  to  publish  a  rival  newspaper,  not  to  run  a  rival 
steamer  on  a  particular  route — in  all  these  cases  the  sum 
stated  must  be  taken  as  liquidated  damages. 

3d.  When  the  party  stipulates  to  marry  no  other  person, 
to  convey  land  or  pay  a  named  sum,  the  price  of  the  land 
having  been  received  by  him,  the  damages  are  liquidated. 

4th.  When  a  named  sum  is  to  be  paid  for  every  acre  of 
land  ploughed  up  contrary  to  agreement;  when  a  stated  sum 
is  to  be  paid  for  each  article  not  delivered — the  damages 
must  be  considered  as  liquidated. 

5th.  When  the  party  stipulates  to  erect  a  building  in  a 
particular  manner  wi-thin  a  given  time  and  upon  failure  to 
pay  a  named  sum,  it  must  be  considered  in  the  nature  of  a 
penalty.  9  Cal.  587. 

SEC.  2.     In  general,  a  sum  of  money  in  gross,  to  be  paid 


LIQUIDATION   OP  DAMAGES.  551 

for  the  non-performance  of  an  agreement,  is  considered  as 
a  penalty.  It  will  not,  of  course,  be  considered  as  liqui 
dated  damages;  and  it  will  be  incumbent  on  the  party  who 
claims,  to-  show  that  they  were  so  considered  by  the  con 
tracting  parties.  9  Col.  588. 

SEC.  3.  Where  the  defendant  stipulated  that  she  would 
erect  a  brick  building  to  cover  such  portion  of  a  lot  as 
would  be  satisfactory  to  plaintiff,  and  give  him  possession 
within  three  weeks ;  the  plaintiff  to  have  possession  for  six 
months,  with  the  privilege  of  twelve  months  or  more,  and 
upon  failure  to  perform  the  agreement  she  was  to  pay  to 
plaintiff  the  sum  of  five  hundred  dollars  damages — the  case 
falls  within  the  rule  applicable  to  building  contracts.  There 
are  several  things  for  the  defendant  to  do,  a  failure  to  per 
form  any  of  which  would  have  been  a  violation  of  the 
agreement.  If  the  building  had  been  erected  upon  a  por 
tion  of  the  lot  not  satisfactory  to  the  plaintiff,  or  the  house 
not  finished  for  a  single  day  beyond  the  stipulated  time,  the 
defendant  would  have  been  liable  for  the  whole  sum,  upon 
the  theory  that  the  sum  named  was  liquidated  damages. 
So,  too,  if  the  plaintiff  had  been  disturbed  in  his  possession 
for  one  day  during  the  term  of  six  months  or  denied  the 
privilege  of  the  additional  term.  There  was  no  statement 
in  the  agreement  that  the  sum  was  to  be  taken  as  liquidated 
damages.  If  the  defendant  had  failed  to  erect  a  suitable 
brick  building,  although  finished  within  the  time  specified, 
it  would  have  been  a  violation  of  the  contract.  The  dam 
ages  mentioned  were  not  liquidated,  but  a  mere  penalty  to 
secure  the  performance  of  the  contract,  or  the  payment  of 
such  damages  as  the  plaintiff  might  be  entitled  to  under  the 
circumstances.  In  building  contracts,  it  may  be  difficult  to 
say  what  amount  of  injury  the  plaintiff  has  sustained  by 
reason  of  the  non-completion  of  the  building  within  the 
exact  time  stated.  And  yet  this  difficulty  in  ascertaining 
the  amount  of  the  injury  occasioned  by  the  delay  has  not 
induced  the  courts  in  such  cases  to  consider  the  sum  as 
liquidated  damages.  9  Cal.  588. 

SEC.  4.  Plaintiffs  purchased  a  bark  of  defendant,  F., 
paid  a  portion  of  the  purchase-money  and  entered  into 
possession;  at  the  time  of  the  sale  the  vessel  was  sailing 


552  JUSTICES'  TREATISE. 

under  a  coasting  license  issued  to  F.,  but  was  registered  in 
the  name  of  a  third  person.  F.  agreed  to  deliver  to  the 
plaintiffs  within  twenty  days  a  good  and  sufficient  title  and 
register  of  the  bark,  and  as  security  for  the  performance  of 
this  agreement,  executed  a  bond  in  the  penal  sum  of  two 
thousand  dollars.  F.  failed  to  deliver  the  title  and  register 
at  the  time  agreed  on  or  at  any  time,  by  reason  of  which 
failure  the  plaintiff  was  restricted  in  the  lawful  and  usual 
use  of  the  vessel :  Held,  that  the  sum  specified  in  the  bond 
should  be  considered  as  liquidated  damages — it  being  one 
of  those  cases  in  which  it  is  difficult,  if  not  impracticable, 
to  estimate  the  exact  amount  of  damage  suffered  by  the 
failure  of  the  defendant  to  comply  with  his  contract.  10 
Gal.  517. 

.  SEC.  5.  S.  sold  to  R.  his  butcher-shop,  tools,  etc.,  at 
Suisun,  and  in  his  contract  of  sale  entered  into  this  cove 
nant  with  R. :  "I  also  bind  myself  in  the  sum  of  five  hun 
dred  dollars  to  said  R.  not  to  go  into  the  butchering  busi 
ness  in  said  Suisun,  without  the  consent  of  said  R.,  in  any 
manner  whatever":  Held,  that  the  five  hundred  dollars 
mentioned  in  the  covenant  are  to  be  regarded  as  liquidated 
damages,  and  not  as  a  penalty.  The  question  whether  a 
specified  sum  mentioned  in  a  contract  to  be  paid  by  either 
party,  in  the  event  of  its  violation,  is  liquidated  damages 
or  a  penalty,  must  be  determined  by  the  intention  of  the 
parties,  to  be  ascertained  from  a  consideration  of  the  whole 
contract.  25  Col.  67. 


MANNER  OP  COMMENCING  ACTIONS. 


553 


CHAPTER     LXV. 
MANNER  OF  COMMENCING  ACTIONS. 


How  ACTIONS  SHALL  BE  COM 
MENCED  1-7 

How  GUARDIANS  APPOINTED  . .     8-9 

FORM  OF  APPLICATION  OF  INFANT 

PLAINTIFF FOK  GUARDIAN.  .  10 

FOKM  OF  APPLICATION  OF  ^RELA 
TIVE  OF  INFANT  PLAINTIFF  .  11 


SECS. 

FOKM  OF  CONSENT  OF  GUARDIAN 

OF  INFANT  PLAINTIFF 12 

FORM  OF  NOMINATION  OF  GUARD 
IAN  BY  INFANT  DEFENDANT  .  13 

FORM  OF  CONSENT  OF  INFANT 

DEFENDANT  . .  14 


How  Actions  shall  be  Commenced, 

SECTION  1.  Actions  in  justices'  courts  shall  be  com 
menced  by  filing  a  copy  of  the  account,  note,  bill,  bond  or 
instrument,  upon  which  the  action  is  brought  or  a  concise 
statement,  in  writing,  of  the  cause  of  action,  and  the  issu 
ance  of  a  summons  thereon,  within  one  year  after  the  filing 
of  the  same,  or  by  the  voluntary  appearance  and  pleadings 
of  the  parties,  without  summons.  In  the  latter  case  the 
action  shall  be  deemed  commenced  at  the  time  of  appear 
ance.  Pub.  Laws  1870,  240. 

SEC.  2.  The  cause  of  action  must  be  filed  with  the  just 
ice  before  the  issuance  of  the  writ  to  give  him  jurisdiction 
of  the  case,  as  well  where  defendant  appears  and  pleads  as 
where  he  makes  default.  4  Eng.  478. 

SEC.  3.  Where  it  is  not  filed  until  after  the  summons  has 
been  issued  he  can  legally  take  no  cognizance  of  it.  1  Eng. 
41,  182,  371,  424. 

SEC.  4.  When  a  defendant  pleads  another  suit  pending 
between  the  same  parties  and  for  the  same  cause  of  action, 
and  it  appears  that  no  summons  was  ever  issued  upon  the 
complaint  and  that  there  was  no  voluntary  appearance  on 
the  part  of  the  defendant  in  such  suit,  there  is  no  suit  pend 
ing.  10  Cal  233. 

SEC.  5.  The  certificate  of  a  justice  op  certiorari,  that  he 
delivered  the  summons  in  the  suit  to  a  constable  on  a  cer_ 
tain  day,  does  not  show  that  he  had  legal  evidence  before 
him  that  the  suit  was  commenced  on  that  day;  such  deliv 
ery  is  no  part  of  his  official  duty,  and  he  cannot  take  notice 
thereof  without  evidence.  3  Denio,  12. 
70 


554  JUSTICES'  TREATISE. 

SEC.  6.  To  authorize  a  justice  to  enter  an  action  by 
agreement  of  the  parties  without  process,  under  the  act  for 
the  trial  of  small  causes,  the  plaintiff  and  defendant  should 
appear  before  the  justice  to  manifest  their  consent,  or  some 
person  on  behalf  of  the  plaintiff  having  competent  authority 
verified  on  oath  before  the  justice.  5  Hoist.  302. 

SEC.  7.  Putting  in  an  answer,  is  an  appearance;  and  such 
an  appearance  must  be  held  to  be  a  waiver  of  the  mere  for 
mality  of  issuing  a  summons,  the  service  of  which  in  such 
case  becomes  unnecessary.  The  only  purpose  of  the  sum 
mons  is  to  bring  the  defendant  into  court.  It  is  constantly 
said  by  courts  when  actions  are  commenced  by  the  service 
of  process,  as  by  capias  ad  respondendum,  that  a  voluntary 
appearance  waives  all  defects  of  process  even  when  objec 
tion  is  taken  in  the  same  action.  Under  our  practice,  the 
plaintiff  by  filing  his  complaint  goes  himself  into  court  and 
although  he  may  not  chose  to  take  out  a  summons  he  can 
not  object  to  the  defendant  coming  in  and  answering  the 
complaint  any  more  than  he  could  object  to  the  defendant's 
voluntary  appearance  after  the  plaintiff  had  taken  out  a 
summons  which  he*  did  not  choose  to  serve.  Quite  as  little 
can  the  defendant  in  a  collateral  action  object  that  there 
was  no  action  pending  after  having  voluntarily  put  in  an 
answer  to  the  complaint  on  file.  21  Gal.  55. 

How  Guardian  Appointed, 

SEC.  8.  "When  a  guardian  is  necessary  he  shall  be  ap 
pointed  by  the  justice  as  follows : 

1st.  If  the  infant  be  plaintiff,  the  appointment  shall  be 
made  before  the  summons  is  issued,  upon  the  application 
of  the  infant  if  he  be  of  the  age  of  fourteen  years  or  upwards; 
if  under  that  age,  upon  the  application  of  some  relative  or 
friend.  The  consent,  in  writing,  of  the  guardian  to  be  ap 
pointed,  and  to  be  responsible  for  costs  if  he  fail  in  the 
action,  shall  be  first  filed  with  the  justice. 

2d.  If  the  infant  be  defendant,  the  guardian  shall  be  ap 
pointed  at  the  time  the  summons  is  returned  or  before  the 
pleadings.  It  shall  be  the  right  of  the  infant  to  nominate 
his  own  guardian,  if  the  infant  be  over  fourteen  years  of 
age,  and  the  proposed  guardian  be  present  and  consent,  in 


MANNER  OF   COMMENCING  ACTIONS.  555 

writing,  to  be  appointed;  otherwise,  the  justice  may  ap 
point  any  suitable  person  who  gives  such  consent.  Gen. 
Laws,  5470. 

SEC.  9.  The  court  has  no  right  to  appoint  a  guardian  ad 
litem  until  the  infant  is  properly  brought  into  court.  9  Cal. 
638. 

Form  of  Application  of  Infant  Plaintiff  of  the  Age  of  Fourteen  Years 
or  upwards,,  for  Guardian. 

SEC.  10.     The  following  is  a  form  of  application  of  infant 
for  guardian  : 
In  the  justice's  court  of township,  in  the  county  of ,  state  of 


plaintiff, 
against 


defendant. 
To ,  one  of  the  justices  of  the  peace  of  said  township : 

The  petition  of respectfully  shows  :  That  he  desires  to  bring  an 

action  in  said  court  against ,  and  has  filed  therein  his  complaint 

[or,  "copy  of  the  instrument  upon  which  the  said  action  is  to  be  brought," 
as  the  case  may  be]. 

That  petitioner  is  an  infant  of  the  age  of  fourteen  years  [or,  if  the  infant 
be  more  than  fourteen,  add,  "  and  upwards,  to  wit:  of  the  age  of  ...  .years"], 

and  has  no  guardian,  but has  consented  to  be  appointed  guardian 

of  petitioner,  and  has  filed  his  consent,  in  writing,  to  be  appointed  such 
guardian,  and  to  be  responsible  for  costs  if  he  fail  in  the  said  action. 

Wherefore,  petitioner  prays  that  said be  appointed  guardian  of 

petitioner  for  the  purpose  of  appearing  for  him  in  said  action. 

[Date.]  

Form  of  Application  of  Relative  or  Friend  cf  Infant  Plaintiff  under 
the  age  of  Fourteen  Years,  for  Appointment  of  Guardian. 

SEC.  11.     The  following  is  a  form  of  application  of  rela 
tive  of  infant  plaintiff  for  guardian  : 

In  the  justice's  court  of  ....  township,  in  the  county  of   . . . .,  state  of   .... 


plaintiff, 
against 


defendant. 
To ,  one  of  the  justices  of  the  peace  of  the  said  township : 

The  petition  of respectfully  shows:  That  he  is  a  relative  [or, 

"friend,"  as  the  case  may  be],  of That is  about  to 

bring  an  action  in  said  court  against ,  and  the  complaint  [or,  "copy 


556  JUSTICES'  TREATISE. 

of  the  instrument  upon  which  the  said  action  is  to  be  brought, ' '  as  the  case 

may  be],  has  been  filed  in  said  court.     That  said is  an  infant  of 

the  age  of  ....  years  and  has  no  guardian,  but  your  petitioner  [or,  ". . .  . 
....,"  as  the  case  may  be],  has  consented  to  be  appointed  guardian  of  said 
infant,  and  has  filed  his  consent  in  writing  to  be  appointed  such  guardian, 
and  to  be  responsible  for  costs  if  he  fail  in  the  said  action. 

Wherefore,  petitioner  prays  that  he  [or  " "]  be  appointed  guard 
ian  of  said  infant,  for  the  purpose  of  appearing  for  said  infant  in  said 
action. 

[Date.]  

Form  of  Consent  of  Guardian  to  Infant  Plaintiff  to  be  Appointed. 

SEC.  12.  The  following  is  a  form  of  consent  of  guardian 
to  infant  plaintiff  to  be  appointed : 

In  the  justice's  court  of  ....  township,  of  the  county  of  . . . .,  state  of  .... 

plaintiff, 
agaimt 


defendant.  J 

I  hereby  consent  to  be  appointed  the  guardian  of ,  the  infant 

plaintiff  in  the  above  entitled  action,  and  to  be  responsible  for  costs  if  he 
fail  in  the  said  action. 

[Date.]  

Form  of  Nomination  of  Guardian  by  Infant  Defendant  over  Fourteen 

Years  of  Age. 

SEC.  13.     The  following  is  a  form  of  nomination  of  guard 
ian  by  infant  defendant  over  fourteen  years  of  age : 
In  the  justice's  court  of  ....  township,  in  the  county  of  . . . . ,  state  of  .... 


plaintiff, 
against 


defendant. 
To ,  one  of  the  justices  of  the  peace  of township : 

The  petition  of respectfully  shows :    That  he  is  the  defendant 

in  the  above  entitled  action,  and  the  summons  in  said  action  has  been  re 
turned  ;  that  he  is  an  infant  over  the  age  of  fourteen  years,  to  wit:  of  the  age 

of  ...  years  and  has  no  guardian ;  that ,  a  friend  of  petitioner,  is 

present  and  has  consented  to  be  appointed  guardian  of  petitioner  in  said 
action  and  has  filed  such  consent  in  writing,  and  petitioner  hereby  nominates 
said such  guardian. 

Wherefore,  petitioner  prays  that  said be  appointed  guardian  of 

petitioner,  to  appear  for  him  in  said  action. 

[Date.]  


MINES  AND  MINING  CLAIMS. 


557 


Form  of  Consent  of  Guardian  of  Infant  Defendant  to  be  Appointed. 

SEC.  14.     The  following  is  a  form  of  consent  of  guardian 
of  infant  defendant  to  be  appointed : 
Tn  the  justice's  court  of  ....  township,  in  the  county  of  . . . .,  state  of  . 


plaintiff, 
against 


defendant,  j 
To ,  one  of  the  justices  of  the  peace  of  ....  township : 

I  hereby  consent  to  be  appointed  the  guardian  of ,  the  infant 

defendant  in  the  above  entitled  action. 

[Date.]  


CHAPTER    LXVI. 
MINES    AND    MINING    CLAIMS. 


SECS. 

LEGISLATION  ON  THE  SUBJECT  OF 

MINES 1-3 

CUSTOM  AND  USAGE 4-8 

USE  OF  WATER  FOR 9 

EXTENT  OF  EIGHT,  OR  CLAIM  OF  10-12 

WORK  DONE  ON 13-15 

EIGHTS  OF  MINERS  AS  AGAINST 

OTHERS 16-19 

ENTRY  UPON  PRIVATE  LANDS.  . .  20-23 

How  ACQUIRED 24-29 

INCAPACITY  OF  TENANTS  IN  COM 
MON  TO  HOLD  UNDER  A  COM 
PANY  NAME 30 

THE  EIGHT  TO  GIVE  AWAY  A 

MINING  CLAIM  . .  31 


How  CONVEYED  OR  TRANS 
FERRED  

How  LOST 

ABANDONMENT 

WHEN  PERFECTION  TAKES  PLACE 

PARTITION  OF ' 

MINING  PARTNERSHIP 

INJURY  OR  TRESPASS  TO 

ACTIONS  TO  EECOVER  POSSESSION 
OF 

STATUTE  OF  LIMITATIONS 

FOREIGN  MINERS 

ACT  TO  EEGULATE  THE  EIGHTS 
OF  THE  OWNERS  OF... 


SECS. 

32^2 
43 

44-50 

51-54 

55 

56-58 
59-62 

63 
64 
65 

66 


Legislation  on  the  Subject  of  Mines. 

SECTION  1.  According  to  the  common  law  of  England, 
mines  of  silver  and  gold  are  termed  "royal  mines,"  and  are 
the  exclusive  property  of  the  crown,  and  although  the  king 
grants  lands  and  the  mines  which  are  in  them,  yet  royal 
mines  will  not  pass  by  so  general  a  description.  All  mines 
of  gold  and  silver  within  the  realm,  though  in  the  lands  of 
subjects,  belong  to  the  crown,  and  this  right  is  accom 
panied  with  full  liberty  to  dig  and  carry  away  the  ores 


558  JUSTICES'  TKEATISE. 

and  with  all  such  incidents  thereto  as  are  necessary  to  be 
used  for  getting  them.  The  several  states  of  the  union,  in 
virtue  of  their  respective  sovereignties,  are  entitled  to  the 
pura  regalia  which  pertained  to  the  king  at  common  law. 
New  states  are  admitted  into  the  union  upon  the  same  foot 
ing  as  the  original  states  and  possess  the  right  of  eminent 
domain,  and  the  United  States  has  no  municipal  sovereign 
ty  within  the  limits  of  the  states.  In  reference  to  the  own 
ership  of  the  public  lands,  the  United  States  only  occupied 
the  position  of  any  private  proprietor  with  the  exception  of 
an  'express  exemption  from  state  taxation.  The  mines  of 
gold  and  silver  on  the  public  lands  are  as  much  the  prop 
erty  of  this  state,  by  virtue  of  her  sovereignty,  as  are  similar 
mines  in  the  la*nds  of  private  citizens.  She  has,  therefore, 
solely  the  right  to  authorize  them  to  be  worked,  to  pass 
laws  for  their  regulation,  to  license  miners  and  to  affix  such 
terms  and  conditions  as  she  may  deem  proper  to  the  free 
dom  of  their  use.  In  her  legislation  upon  this  subject  she 
has  established  the  policy  of  permitting  all  who  desire  it 
to  work  her  mines  of  gold  and  silver  with  or  without  con 
ditions  ;  and  she  has  wisely  provided  that  their  conflicting 
claims  shall  be  adjudicated  by  the  rules  and  customs  which 
may  be  established  by  bodies  of  them  working  in  the  same 
vicinity.  3  Gal  225-227. 

SEC.  2.  This  state  has  a  large  territory.  Upon  its  acqui 
sition  by  the  United  States,  from  the  sparceness  of  its  pop 
ulation,  but  a  small  comparative  proportion  of  its  land  had 
been  granted  to  private  individuals;  the  great  bulk  of  it  was 
land  of  the  government;  but  little,  as  yet,  has  been  acquired 
by  individuals  by  purchase.  Our  citizens  have  gone  upon 
the  public  lands  continuously  from  a  period  anterior  to  the 
organization  of  the  state  government  to  the  present  time. 
Upon  these  lands  they  have  dug  for  gold,  excavated  min 
eral  rock,  constructed  ditches,  flumes  and  canals,  for  con 
ducting  water,  built  mills  for  sawing  lumber  and  grinding 
corn,  established  farms  for  cultivating  the  earth,  made  set 
tlements  for  the  grazing  of  cattle,  laid  off  towns  and  villages, 
felled  trees,  diverted  water  courses,  and,  indeed,  have  done 
in  the  various  enterprises  of  life  all  that  is  usual  and  neces 
sary  in  a  high  condition  of  civilized  development.  All  of 


MINES  AND  MINING  CLAIMS.  559 

these  are  open  and  notorious  facts,  charging  with  notice  of 
them  not  only  the  courts  who  have  to  apply  the  law  in  refer 
ence  to  them,  but  also  the  government  of  the  United  States 
which  claims  to  be  the  proprietor  of  these  lands,  and  the 
government  of  the  state  within  whose  sovereign  jurisdiction 
they  exist.  In  the  face  of  these  notorious  facts  the  govern 
ment  of  the  United  States  has  not  attempted  to  assert  any 
right  of  ownership  to  any  of  the  large  body  of  lands  within 
the  mineral  region  of  the  state.  The  state  government  has 
not  only  looked  on  quiescently  upon  this  universal  appro 
priation  of  the  public  domain  for  all  of  these  purposes,  but 
has  studiously  encouraged  them  in  some  instances  and 
recognized  them  in  all.  The  parties  to  these  acts  have  ac 
quired  rights.  These  rights  rest  upon  the  doctrine  of  pre 
sumption  of  a  grant  of  right,  arising  either  from  the  tacit 
assent  of  the  sovereign  or  from  expressions  of  her  will  in 
the  course  of  her  general  legislation  and,  indeed,  from  both. 
Possession  gives  title  only  by  presumption ;  then  when  the 
possession  is  shown  to  be  of  public  land  the  possessor  can 
protect  his  possession  only  upon  the  doctrine  of  presump 
tion,  for  a  license  to  occupy  from  the  owner  will  be  pre 
sumed.  The  state  in  her  legislation  upon  this  subject  has 
established  the  policy  of  permitting  all  who  desire  it  to  work 
her  mines  of  gold  and  silver  with  or  without  conditions. 
Yet  there  has  never  been  any  act  of  the  legislature  directly 
conferring  the  privilege  of  working  the  mines,  except  in 
cases  of  foreigners,  who  were  required  to  obtain  and  pay 
for  a  license  to  do  so.  The  general  legislation  of  the  state 
looking  at  the  existence  of  this  state  of  things,  and  refer 
ring  to  it,  necessarily  presumed  a  license — a  license  to  every 
one  who  chose  to  possess  himself  of  the  franchise.  The 
policy  of  this  state,  as  derived  from  her  legislation  is,  to 
permit  settlers  in  all  capacities  to  occupy  the  public  lands, 
and  by  such  occupation  to  acquire  the  right  of  undisturbed 
enjoyment  against  all  the  world  but  the  true  owner.  In  evi 
dence  of  this,  acts  have  been  passed  to  protect  the  possession 
of  agricultural  lands  acquired  by  mere  occupancy,  to  license 
miners,  to  provide  for  the  recovery  of  mining  claims,  recog 
nizing  canals  and  ditches  which  were  known  to  divert  the 
water  of  streams  from  their  natural  channels  for  mining  pur- 


560  JUSTICES'  TREATISE. 

poses,  and  others  of  like  character.  This  policy  has  been 
extended  equally  to  all  pursuits,  and  no  partiality  for  one 
over  another  has  been  evinced,  except  in  the  single  case 
where  the  rights  of  the  agriculturist  are  made  to  yield  to 
those  of  the  miner  where  gold  is  discovered  in  his  land. 
This  exceptional  privilege  is,  of  course,  confined  to  public 
lands.  The  policy  of  tfye  exception  is  obvious.  "Without  it 
the  entire  gold  region  might  have  been  inclosed  in  large 
tracts,  under  the  pretense  of  agriculture  and  grazing,  and 
eventually  what  would  have  sufficed  as  a  rich  bounty  to 
many  thousands  would  be  reduced  to  the  proprietorship  of 
a  few.  Aside  from  this,  the  legislation  and  decisions  have 
been  uniform  in  awarding  the  right  of  peaceable  enjoyment 
to  the  first  occupant,  either  of  the  land  or  of  anything  inci 
dent  to  the  land.  That  as  the  state  has  granted  the  fran 
chise  of  digging  gold,  all  of  the  incidents  necessary  to  that 
purpose— wood,  water,  etc. — must  follow,  is  certainly  the 
doctrine  of  the  common  law,  and  would  be  decisive  in  the 
absence  of  any  other  right  to  contradict  it.  But  there  is 
nothing  sufficiently  expressive  in  the  character  of  that  legis 
lation  which  warrants  an  interference  with  the  already-ac 
quired  rights  of  individuals,  except  in  the  single  case  of 
agricultural  lands.  Therefore,  the  right  to  mine  for  the 
precious  metals  can  only  be  exercised  upon  public  lands; 
although  it  carries  with  it  the  incidents  to  the  right,  such 
as  the  use  of  wood  and  water,  those  incidents  must  also  be  of 
the  public  domain  in  like  manner  as  the  lands;  a  prior  ap 
propriation  of  either  to  steady  individual  purpose,  estab 
lishes  a  quasi  private  proprietorship  which  entitles  the 
holder  to  be  protected  in  its  quiet  enjoyment  against  all 
the  world  but  the  true  owner,  except  in  the  single  case  pro 
vided  to  the  contrary  by  the  statute— the  case  of  agricultu 
ral  lands.  5  Col.  399;  14  Cal.  376. 

SEC.  3.  The  whole  course  of  legislation  and  judicial 
decisions  in  this  state,  since  its  organization,  has  recognized 
a  qualified  ownership  of  the  mines  in  private  individuals. 
Contracts  affecting  mining  claims  have  been  constantly 
enforced;  remedies  have  been  afforded  to  those  whose  pos 
session  has  been  disturbed  or  whose  claims  have  been  tres 
passed  upon  by  others,  and  the  right  of  the  locator  to  sell, 


MINES  AND  MINING  CLAIMS.  561 

hypothecate  or  in  any  manner  dispose  of,  his  property  in 
mining  claim,  has  been  upheld  as  well  by  legislative  enact 
ment  as  by  judicial  decisions.     12  Cal.  70;  7  Cal.  327. 

Custom,  Usage. 

SEC.  4.  In  actions  respecting  mining  claims,  proof  shall 
be  admitted  of  the  customs,  usages  or  regulations,  estab 
lished  and  in  force  at  the  bar  or  diggings  embracing  such 
claim;  and  such  customs,  usages  or  regulations,  when  not 
in  conflict  with  the  constitution  and  laws  of  this  state,  shall 
govern  the  decision  of  the  action.  Gen.  Laivs,  621. 

SEC.  5.  At  the  time  the  foregoing  law  was  enacted  [April 
29th,  1851]  and  became  a  part  of  the  law  of  the  land,  there 
had  sprung  up  throughout  the  mining  regions  of  the  state 
local  customs  and  usages  by  which  persons  engaged  in 
mining  pursuits  were  governed  in  the  acquisition,  use,  for 
feiture  or  loss,  of  mining  ground.  [The  word  "forfeiture ' 
is  not  here  used  in  the  common-law  sense,  but  in  its  mining- 
law  sense,  as  used  and  understood  by  the  miners,  who  are 
the  framers  of  our  mining  codes.]  These  customs  differed 
in  different  localities,  and  varied  to  a  greater  or  less  extent 
according  to  the  character  of  the  mines.  They  prescribed 
the  acts  by  which  the  right  to  mine  a  particular  piece  of 
ground  could  be  secured,  and  its  use  and  enjoyment  con 
tinued  and  preserved,  and  by  what  new  action  on  the  part 
of  the  appropriator  such  right  should  become  forfeited  or 
lost  and  the  ground  become,  as  at  first,  publici  juris,  and 
open  to  the  appropriation  of  the  next  comer.  They  were 
few,  plain  and  simple,  and  well  understood  by  those  with 
whom  they  originated.  They  were  well  adapted  to  secure 
the  end  designed  to  be  accomplished,  and  were  adequate  to 
the  judicial  determination  of  all  controversies  touching 
mining  rights.  And  it  was  a  wise  policy  on  the  part  of  the 
legislature  not  only  not  to  supplant  them  by  legislative 
enactments,  but  on  the  contrary  to  give  them  the  additional 
weighjt  of  a  legislative  sanction.  These  usages  and  cus 
toms  were  the  fruit  of  the  times,  and  demanded  by  the 
necessities  of  communities  who,  though  living  under  the 
common  law,  could  find  therein  no  clear  and  well-defined 
rules  for  their  guidance  applicable  to  the  new  conditions 
71 


562  JUSTICES'  TREATISE. 

by  which  they  were  surrounded,  but  were  forced  to  de 
pend  upon  remote  analogies  of  doubtful  application  and 
unsatisfactory  results.  Haying  received  the  sanction  of  the 
legislature,  they  have  become  as  much  a  part  of  the  law  of 
the  land  as  the  common  law  itself,  which  was  not  adopted 
in  a  more  solemn  form.  These  customs  and  usages  have, 
in  progress  of  time,  become  more  general  and  uniform,  and 
in  their  leading  features  are  now  the  same  throughout  the 
mining  regions  of  the  state.  26  Cal.  532,  533. 

SEC.  6.  If  a  mining  custom  allows  a  person  to  locate  a 
lode  or  vein  for  himself  and  others,  by  placing  thereon  a 
notice,  with  his  own  name  and  the  names  of  those  whom  he 
may  choose  to  associate  with  him,  appended  thereto,  des 
ignating  the  extent  of  his  claim ;  and  one  person  thus 
locates  a  lode  for  himself  and  several  others,  some  of  wiiom 
have  no  knowledge  of  the  location,  the  persons  who  have 
no  knowledge  of  the  location  by  the  same  become  tenants 
in  common  with  the  locator  and  the  others,  and  cannot  be 
divested  of  their  interest  by  the  locators  afterwards  tearing 
down  the  notice  and  posting  up  another  omitting  their 
names,  unless  this  is,  done  with  their  knowledge  and  con 
sent.  26  Cal.  527. 

SEC.  7.  The  right  of  a  mining  claim  upon  the  public 
lands  rests  upon  possession  only.  23  Cal.  178,  501 ;  20 
Cal.  198;  10  Cal.  181. 

SEC.  8.  The  owner  of  a  mining  claim  has,  in  practical 
effect,  a  good  vested  title  to  the  property,  and  should  be 
so  treated  until  his  title  is  divested  by  the  exercise  of  the 
higher  right  of  the  superior  proprietor.  His  rights  and 
remedies,  in  the  meantime,  are  not  trammeled  by  the  con 
sideration  that  the  higher  right  to  reclaim  the  property 
exists  in  another,  which  right  may  possibly,  but  will  not 
probably,  be  exercised.  His  right  to  protect  the  property 
for  the  time  being,  under  the  peculiar  circumstances  of  the 
case,  is  as  full  and  perfect  as  if  he  was  the  tenant  of  the 
superior  proprietor  for  years  or  for  life.  7  Cal.  327. 

Use  of  Water. 

SEC.  9.  Now,  also,  ever  since  the  organization  of  the 
state,  among  the  other  various  enterprises  which  have  been 


MINES  AND   MINING  CLAIMS.  563 

t 

undertaken  upon  the  public  lands  is  that  of  the  construc 
tion  of  ditches,  flumes  and  canals,  for  the  purpose  of  con 
ducting  waters  from  their  natural  channels  to  supply  the 
wants  of  gold  miners.  In  like  manner  as  in  other  pursuits, 
the  state  government  has  looked  on  the  progress  of  these 
works  for  the  past  seven  years,  until  their  extent  has 
reached  hundreds  of  miles,  and  every  important  stream  in 
the  state  has  been  tapped  by  them ;  has  referred  to  them 
in  various  legislative  acts,  and  has  annually  made  them  the 
subject  of  revenue  to  the  state.  By  the  rule  of  presump 
tion,  a  positive  right  exists  in  the  constructors  and  owners 
of  these  works  to  hold  and  enjoy  them  as  property — a  vest 
ed  right  which  cannot  be  taken  away.  They  have  a  right 
to  appropriate  the  water,  to  divert  it  from  its  natural  chan 
nel,  where  no  riparian  rights  intervened,  and  to  be  pro 
tected  in  its  use,  in  its  pure  and  natural  condition,  against 
all  subsequent  efforts  to  divert  or  injure  it.  This  right, 
then,  like  that  of  digging  gold,  is  a  franchise ;  the  attend 
ing  circumstances  raise  the  presumption  of  a  general  grant 
from  the  sovereign  of  this  privilege,  and  every  one  who 
wishes  to  attain  it  has  license  from  the  state  to  do  so,  pro 
vided  the  prior  rights  of  others  are  not  interrupted.  As, 
from  the  nature  of  these  works,  time  is  necessary  to  com 
plete  them,  the  license  would  be  valueless  if  the  right  did 
not  commence  until  their  completion;  and  it  must  be  pre 
sumed  that  in  granting  the  license,  the  state  did  not  intend 
it  should  be  turned  into  so  vain  a  thing,  but  designed  it  to 
be  effectual  for  the  object  in  view,  and  it  consequently  fol 
lows  that  the  same  rule  must  be  applied  here  to  protect  this 
right  as  any  other.  6  CaL  558. 

Extent  of  Right,  or  Claim  of. 

SEC.  10.  The  quantity  of  ground  a  miner  can  claim  by 
location  or  prior  appropriation  for  mining  purposes  may  be 
limited  by  the  mining  rules  of  the  district.  The  mining 
rules  of  the  district*  cannot  limit  the  quantity  of  ground  or 
the  number  of  claims  a  party  may  acquire  by  purchase.  18 
CaL.  47. 

SEC.  11.  In  the  absence  of  mining  rules  regulating  the 
subject  of  claims,  their  courses,  distances,  etc.,  the  fact  that 


664  JUSTICES'  TKEATISE. 

a  party  has  located  a  claim  bounded  by  another  claim  raises 
no  implication  or  inference  that  the  last-located  claim  cor 
responds  in  size  or  the  direction  of  its  lines  with  the  former. 
7  Cal.  42. 

SEC.  12.  Actual  possession  of  a  portion  of  a  mining 
claim,  according  to  the  custom  of  miners  in  a  given  local 
ity,  extends,  by  construction,  to  the  limits  of  the  claim  held 
in  accordance  with  such  customs.  3  Cal.  224. 

Of  Work  done  on  a  Claim. 

SEC.  13.  In  the  absence  of  any  custom  or  local  regula 
tion,  the  right  of  property  once  attached  in  a  mining  claim, 
does  not  depend  upon  mere  diligence  in  working  such 
claim.  The  failure  to  comply  with  any  one  mining  regula 
tion  is  not  a  forfeiture  of  title.  It  would  be  enough  to  hold 
the  forfeiture  as  the  result  of  a  non-compliance  with  such  of 
them  as  make  a  non-compliance  a  cause  of  forfeiture.  It  is 
not  the  making  of  improvements  or  expending  of  money  on 
another's  property  which  entitles  the  person  so  expending 
to  hold  the  property  as  against  the  owner  or  even  the 
improvements  ;  but  it  is  the  fraud  of  the  owner,  who 
silently  or  otherwise,  encourages  the  expenditure.  But 
this  fraud  only  exists,  at  the  very  most,  where  the  owner 
knows  that  the  other  person  is  making  the  expenditures, 
and  also  knows  that  he  makes  them  under  the  bona  fide 
reasonable  belief  that  he  is  the  owner  of  the  property.  12 
Cal.  426. 

SEC.  14.  Where  the  regulations  of  a  mining  locality 
require  that  every  claim  shall  be  worked  two  days  in  every 
ten  :  Held,  that  the  efforts  of  the  owners  of  a  claim  to  pro 
cure  machinery  for  working  the  claim  are,  by  fair  intend- 
ment,  to  be  considered  as  work  done  on  the  claim.  So, 
also,  is  working  on  adjoining  land  in  constructing  a  drain 
to  enable  the  owners  to  work  the  claim.  9  Cal.  568. 

SEC.  15.  Work  done  outside  of  a  mining  claim,  with 
intent  to  work  the  claim,  to  be  considered  by  intendment 
as  work  done  on  the  claim,  must  have  direct  relation  and  be 
in  reasonable  proximity  to  it.  12  Cal.  426. 


MINES  AND  MINING  CLAIMS.  565 

Rights  of  Miners  as  against  Others. 

SEC.  16.  Injuring  Crops  or  Buildings. — No  person  shall, 
for  mining  purposes,  destroy  or  injure  any  growing  crops 
of  grain  or  garden  vegetables,  growing  upon  the  mineral 
lands  of  this  state,  nor  undermine  or  injure  any  house, 
building  improvement,  or  fruit  trees,  standing  upon  mineral 
lands  and  the  property  of  another,  except  as  hereinafter 
provided. 

Miners  to  Give  Bonds. — Whenever  any  person,  for  mining 
purposes,  shall  desire  to  occupy  or  use  any  mineral  lands 
of  this  state,  then  occupied  by  such  growing  crops  of  grain, 
garden  vegetables,  fruit  trees,  houses,  buildings  or  other 
improvements,  property  of  another,  such  person  shall  first 
give  bond  to  the  owner  of  the  growing  crop,  building,  fruit 
trees  or  other  improvement,  to  be  approved  by  a  justice  of 
the  peace  of  the  towrnship,  with  two  or  more  sufficient  sure 
ties,  in  a  sum  to  be  fixed  by  three  disinterested  citizens, 
householders  of  the  township,  one  to  be  selected  by  the 
obligor,  one  by  the  obligee  and  one  by  a  justice  of  the 
peace  of  the  township,  conditional  that  the  obligor  shall 
pay  the  obligee  any  and  all  damages  which  said  obligee 
may  sustain  in  consequence  of  the  destruction  by  the 
obligor  or  those  in  his  employ,  of  the  growing  crops,  fruit 
trees,  improvements  or  buildings,  of  the  obligee :  provided, 
that  the  word  "improvements"  in  this  act  shall  be  construed 
to  mean  any  superstructure  on  said  farm,  ranch  or  garden, 
and  nothing  more. 

Punishment  for  Violating. — If  any  person  or  persons  shall 
violate  the  provisions  of  this  act,  he  or  they  shall  be  deemed 
guilty  of  a  misdemeanor,  and  on  conviction  thereof  before 
any  court  of  competent  jurisdiction,  shall  be  fined  in  a  sum 
not  exceeding  two  hundred  dollars  nor  less  than  fifty  dollars, 
or  by  imprisonment  in  the  county  jail  of  said  county  not 
exceeding  three  months,  either  or  both,  at  the  discretion  of 
the  court :  provided,  nothing  in  this  act  shall  prevent  miners 
from  working  any  mineral  lands  in  the  state  after  the  grow 
ing  crops  on  the  same  are  harvested.  Gen.  Laws,  4646- 
4648. 

SEC.  17.    The  state  of  California,  as  she  had  an  undoubt- 


566  JUSTICES'  TREATISE. 

ed  right  to  do,  by  the  act  of  April  llth,  1850,  and  the  act 
of  April  20th,  1852,  passed  laws  regulating  the  manner 
of  defending  and  possessing  the  public  lands  within  her 
borders,  and  did  define  what  lands  may  be  possessed  for 
agricultural  purposes.  By  the  provisions  of  those  laws, 
lands  containing  any  of  the  precious  metals  wrere  expressly 
excepted,  and  the  supreme  court  say  a  person  who  settles 
for  agricultural  purposes  upon  any  of  the  mining  lands  of 
this  state  settles  upon  such  land  subject  to  the  rights  of 
miners,  who  may  proceed  in  good  faith  to  extract  any  val 
uable  metals  there  may  be  found  in  the  lands  so  occupied 
by  the  settler,  in  the  most  practicable  manner  in  which  they 
can  be  extracted  and  with  the  least  injury  to  the  claimant 
occupying  the  same.  HcClintock  vs.  Bryden  et  al.,  5  Cal.  97. 

SEC.  18.  The  occapant  of  land  may  in  every  case  rely 
upon  his  possession  as  against  a  mere  trespasser,  and  the 
fact  that  the  land  is  the  public  domain  of  the  United  States 
or  land  containing  the  precious  minerals  will  afford  no  au 
thority  to  strangers  or  third  persons  entering  upon  his  pos 
session,  except  in  the  cases  allowed  by  statute.  These  cases 
are :  First,  where  the  land  is  used  for  grazing ;  and,  second, 
for  agricultural  purposes.  The  legislature,  in  the  wise  ex 
ercise  of  its  discretion,  has  seen  proper  to  foster  and  pro 
tect  the  mining  interest  as  paramount  to  all  others.  In 
permitting  miners,  however,  to  go  upon  public  lands  occu 
pied  by  others,  it  has  legalized  what  would  otherwise  have 
been  a  trespass,  and  the  act  cannot  be  extended,  by  impli 
cation,  to  a  class  of  cases  not  specially  provided  for.  The 
occupation  of  a  lot  for  the  purpose  of  hotel-keeping  is  not 
inconsistent  with  the  policy  of  the  state  with  regard  to  min 
ing  claims.  The  interests  and  wrants  of  the  mining  communi 
ties  demand  that  some  facilities  and  accommodations  should 
be  afforded  to  the  business  of  mining,  and  that  persons  set 
tled  in  good  faith  upon  lots  in  the  mining  towns  and  carry 
ing  on  business  should  be  reasonably  protected  and  not  left 
at  the  mercy  of  any  malicious  or  irresponsible  party  who 
may  choose  to  invade  their  possession  upon  the  specious 
pretext  of  mining.  5  Cal.  309,  310. 

SEC.  19.  A  party  cannot,  under  pretense  of  holding  land 
in  exclusive  occupancy,  as  a  town  lot,  take  up  and  inclose 


MINES  AND   MINING  CLAIMS.  567 

twelve  acres  of  mineral  land  in  the  mining  district  as  against 
persons  who  subsequently  enter  upon  the  land  in  good  faith 
for  the  purpose  of  digging  for  gold  therein,  and  who,  in  such 
operations,  do  no  injury  to  the  comfortable  use  of  the  prem 
ises  as  a  residence  or  for  the  carrying  on  of  any  mechanical 
or  commercial  business.  11  CaL  12. 

Entry  upon  Private  Lands. 

SEO.  20.  The  claim  of  a  license  from  the  state  with  ref 
erence  to  the  mines,  assuming  that  she  possesses  title  to  the 
mineral,  is  based  on  her  affirmative  acts  and  not  on  mere 
forbearance.  By  her  legislation  she  has  authorized  the 
issuance  of  licenses  to  certain  classes  of  persons ;  has  pro 
vided  for  the  introduction  of  proof  of  particular  customs, 
usages  and  regulations,  in  actions  respecting  mining  claims; 
has  levied  taxes  upon  canals  and  ditches  constructed  for  the 
express  purpose  of  conducting  water  to  be  used  in  mining 
for  gold,  and,  in  a  great  variety  of  instances,  has  expressed 
her  recognition  of  a  license  in  the  miner  to  use  whatever 
right  she  possessed.  But  this  license,  very  justly  inferred 
from  the  general  course  of  her  legislation,  is  restricted  to 
the  public  lands.  This  has  been  expressly  adjudged  by 
this  court  in  repeated  instances.  In  Stokes  vs.  Barrett  (5 
Cal.  36),  the  court  said:  "We  held,  in  the  case  of  Hicks  et 
al.  vs.  Bell  et  aL,  that  the  mines  of  gold  and  silver  in  this 
state  were  the  property  of  the  state,  and  that  the  policy  of 
her  legislation  permitted  all  persons  to  work  for  these  met 
als.  We  did  not  in  that  case  intend  to  go  further  than  to 
decide  the  right  of  all  citizens  to  dig  for  gold  upon  the  pub 
lic  lands ;  for  although  the  state  is  the  owner  of  the  gold 
and  silver  found  in  the  lands  of  private  individuals  as  well 
as  the  public  lands,  yet  to  authorize  an  invasion  of  private 
property  in  order  to  enjoy  a  public  franchise  would  require 
more  specific  legislation  than  any  yet  resorted  to.  14  Cal. 
376. 

SEC.  21.  Under  the  laws  of  this  state,  any  citizen  of  the 
United  States  may  enter  upon  and  hold  an  amount  of  the 
public  domain,  whether  within  the  mineral  districts  or  not, 
or  whether  containing  mines  or  not,  not  exceeding  one  hun 
dred  and  sixty  acres.  He  has  the  right  to  occupy  and  im- 


568  JUSTICES'  TREATISE. 

prove  it,  cultivate  the  soil,  plant  orchards  and  vineyards, 
and  apply  it  to  such  uses  as  he  may  deem  most  advanta 
geous  to  himself.  But  his  possession  of  the  land  for1  the 
common  usual  purposes  of  grazing  and  agriculture,  is  sub 
ordinate  to  the  right  of  the  miner,  who,  when  acting  in 
good  faith,  has  the  right  to  enter  upon  any  tract  of  land 
held  by  another  merely  for  agricultural  or  grazing  purposes, 
and  to  mine  the  same,  doing  no  more  injury  to  the  premises 
than  may  be  necessary  to  enable  him  to  work  the  mine  in 
the  most  practicable  manner.  The  policy  of  this  state  is 
"to  permit  settlers  in  all  capacities  to  occupy  the  public 
lands,  and  by  such  occupation  to  acquire  the  right  of  undis 
turbed  enjoyment  against  all  the  world  but  the  true  owner." 
Tartar  vs.  The  Spring  Creek,  Water  and  Mining  Company,  5 
Cal.  395.  This  right  of  possession  is  exclusive  of  all  others, 
except  tfie  miner,  who  has  the  right  to  enter  upon  any  tract 
of  mineral  land  which  may  be  occupied  by  another,  merely 
for  agricultural  or  grazing  purposes,  and  to  locate  his 
mining  claim  thereon,  according  to  the  usage  and  custom 
of  miners ;  to  pass  and  repass  over  the  land  in  going  to  and 
from  his  claim;  to  dig  up  the  soil,  sink  shafts,  run  tunnels, 
and  do  all  other  acts  necessary  and  proper  to  enable  him  to 
work  his  claim  efficiently,  being  careful  to  do  no  unneces 
sary  injury  to  the  land.  Such,  in  general  terms,  are  the 
rights  of  the  miner;  but  these  rights  are  subject  to  limita 
tions  and  restriction,  necessary  to  prevent  an  interference 
with  rights  of  property  vested  in  others,  and  which  are  en 
titled  to  equal  protection  with  his  own.  Thus  he  has  no 
right  to  use  water  to  work  his  mine  which  has  been  appro 
priated  to  other  legitimate  purposes.  Irwin  vs.  Phillips,  5 
Cal.  140;  Tartar  vs.  The  Spring  Creek  Water  and  Mining 
Company,  5  Cal.  395.  Nor  has  he  a  right  to  dig  a  ditch  to 
convey  water  to  his  mine  over  land  in  the  possession  of 
another.  Burdge  vs.  Undenvood,  6  Cal.  45;  Weimer  vs. 
Loiury,  11  Cal.  104.  Nor  can  he  mine  land  used  for  a 
residence  and  for  purposes  connected  therewith  (Fitzgerald 
vs.  Urton,  5  Cal.  308),  or  land  used  for  houses,  orchards, 
vineyards,  gardens  and  the  like.  Smith  vs.  Doe,  15  Cal. 
101;  Gillanvs.  Hutchinson,  16  Cal.  153.  In  Smith  vs.  Duval, 
(15  Cal.  101),  the  court  say:  "It  must  not  be  understood, 


MINES  AND  MINING  CLAIMS.  569 

however,  that,  within  the  limits  of  the  mines,  all  possessory 
rights  and  all  rights  of  property,  not  founded  upon  a  valid 
legal  title,  are  held  at  the  mercy  and  discretion  of  the 
miner.  Upon  this  subject  it  is  impossible  to  lay  down  any 
general  rule,  but  every  case  must  be  determined  upon  its 
own  particular  facts.  Valuable  and  permanent  improve 
ments,  such  as  houses,  orchards,  vineyards,  etc.,  should 
undoubtedly  be  protected;  as  also  growing  crops  of  every 
description,  for  these  are  as  useful  and  necessary  as  the 
gold  produced  by  the  working  of  the  mines.  Improvements 
of  this  character,  and  such  products  of  the  soil  as  are  the 
fruits  of  toil  and  labor,  must  be  regarded  as  private  prop 
erty,  and  upon  every  principle  of  legal  justice  are  entitled 
to  the  protection  of  the  courts."  As  was  said  in  the  case 
of  Tartar  vs.  The  Spring  Creek  Water  and  Mining  Company, 
' '  the  legislation  and  decisions  have  been  uniform  in  award 
ing  the  right  of  peaceable  enjoyment  to  the  first  occupant, 
either  of  the  land  or  of  anything  incident  to  the  land."  In 
that  case,  as  also  the  case  of  Clark  vs.  Duval  (15  Cal.  85), 
the  court  recognize  the  common-law  principle  that  the  grant 
of  the  right  to  mine  carried  with  it  all  the  incidents  neces 
sary  to  that  purpose ;  that  this  included  the  use  of  the  land 
and  such  elements  of  the  freehold  and  inheritance  as  wood, 
water  and  the  like,  as  were  necessary  for  mining  purposes. 
But  in  the  former  case  the  court  expressly  say  that  ' '  there 
is  nothing  sufficiently  expressive  in  the  legislation  of  the 
state  which  warrants  an  interference  with  the  already  ac 
quired  rights  of  individuals,  except  in  the  single  case  of 
agricultural  lands.  So  in  Stokes  vs.  Barrett  (5  Cal.  36),  the 
court  say  that  ' '  to  authorize  an  invasion  of  private  property 
in  order  to  enjoy  a  public  franchise  would  require  more 
specific  legislation  than  any  yet  resorted  to."  And  in  Gil- 
Ian  vs.  Hutcliinson  (16  Cal.  153),  it  was  held  that  the  legis 
lature  had  no  power  to  take  the  property  of  one  person  and 
give  it  to  another,  and  therefore  the  act  of  1855  giving  the 
miner  the  right  to  dig  up  an  orchard,  vineyard,  garden  and 
crop  of  growing  grain,  by  tendering  the  owner  a  bond  for 
the  payment  of  all  damages,  was  held  invalid.  Such  are 
some  of  the  principles  which  this  court  has  laid  down  in 
determining  the  numerous  questions  which  have  arisen  be- 
72 


570  JUSTICES'  TREATISE. 

tween  the  occupant  of  the  public  lands  and  the  miner. 
While  the  rights  of  the  latter  have  been  sedulously  guard 
ed,  the  court  have  been  equally  careful  to  protect  the  rights 
of  the  former  from  invasion.  25  Cal.  452-454. 

SEC.  22.  A  person  entering  upon  and  possessing  public 
lands,  under  the  possessory  act  of  April  20th,  1852,  holds 
the  land  subject  to  the  right  of  any  person  to  enter  upon  it, 
and  work  the  mines  of  precious  metals  therein.  Where  the 
miner,  who  desires  to  dig  up  crops  growing  on  land  held 
under  the  possessory  act,  offers  to  give  the  proper  bond  re 
quired  by  the  act  of  1855,  and  the  owner  of  the  crops  refuse 
to  receive  it,  the  miner  acquires  by  such  offer  a  right  to 
enter  and  mine  on  the  land,  and  cannot  be  treated  as  a  tres 
passer.  The  miner  is  liable,  however,  for  the  damage  to 
the  growing  crops  caused  by  his  act,  and  if  the  owner  of  the 
crops  should  demand  of  the  miner  payment  of  the  damage 
caused  to  the  crop,  and  the  miner  should  refuse  to  pay,  a 
court  of  equity  would  restrain  him  from  further  working. 
23  Cal.  552,  453. 

SEC.  23.  Miners  have  no  right  to  enter  upon  private  land 
and  subject  it  to  such  uses  as  may  be  necessary  to  extract 
the  precious  metals  which  it  contains.  14  Cal.  460. 

How  Acquired  and  Held. 

SEC.  24.  One  party  may  locate  ground  in  the  mineral 
districts  for  fluming  purposes,  and  another  party  at  the  same 
or  a  different  time  may  locate  the  same  ground  for  mining 
purposes — the  two  locations  being  for  different  purposes 
will  not  conflict.  A  party  may  take  up  a  claim  for  mining 
purposes  that  has  been  and  still  is  used  as  a  place  of  de 
posit  for  tailings  by  another  and  his  mining  right  may  be 
subject  to  this  prior  right  of  deposit,  but  the  claim  of  the 
miner  will  not  be  subject  to  those  who  come  after  him.  9 
Cal.  589-591. 

SEC.  25.  The  right  in  a  mining  claim  rests  upon  the  taking 
in  accordance  with  local  rules.  12  Cal.  431. 

SEC.  26.  The  mode  of  acquiring  and  the  extent  of  a  min 
ing  claim  must  be  in  conformity  with  the  local  rules  of 
miners.  12  Cal.  534.  They  are  held  by  possession,  but 
that  possession  is  regulated  and  defined  by  usage  and  local 


MINES  AND   MINING  CLAIMS.  571 

conventional  rules,  and  the  actual  possession  which  is  ap 
plied  to  agricultural  land,  and  which  is  understood  to  be  a 
possessio  pedis,  can  scarcely  be  required  in  a  mining  claim  in 
order  to  give  a  right  of  action  for  the  invasion  of  it.  The 
claim  must  be  in  some  way  defined,  as  to  limits  of  course, 
before  the  possession  of,  or  working  upon,  part  gives  posses 
sion  to  any  more  than  that  part  so  possessed  or  worked. 
But  when  the  claim  is  defined  and  the  party  enters  in  pur 
suance  of  mining  rules  and  customs,  the  possession  of  part 
is  the  possession  of  the  entire  claim.  And  so  if  a  party 
enters,  bona  fide,  under  color  of  a  title,  as  under  a  deed  or 
lease,  the  possession  of  part  as  against  any  one  but  the  true 
owner  or  prior  occupant  is  the  possession  of  the  entire  claim 
described  by  the  paper — and  this  though  the  paper  did  not 
convey  the  title.  The  condition  of  the  possessor  in  such 
instances  would  not  be  worse  than  that  of  the  occupant  of 
other  real  estate,  in  which  case  this  rule  applies.  A  third 
person  would  have  no  right  to  invade  the  possession  of 
the  party  taking  it  under  such  circumstances,  and  set  up  as 
against  him  outstanding  title  in  a  stranger  with  which  he 
had  no  connection.  This  principle  does  not  touch  the  case 
of  an  entry  into  possession  in  pursuance  of  mining  rules 
and  regulations,  as  for  a  forfeiture  or  abandonment,  etc., 
but  the  case,  we  suppose,  is  of  a  possession  taken  independ 
ently  of  such  rules.  17  Cal.  43. 

SEC.  27.  A  patent  from  the  United  States  for  land  in 
California,  issued  upon  a  confirmation  of  claims  held  under 
grants  of  the  former  Mexican  government,  invests  the 
patentee  with  the  ownership  of  the  precious  metals  which 
the  land  may  contain.  Where  individuals  convey  lands  the 
minerals  of  gold  and  silver  pass,  unless  expressly  reserved. 
17  Cal.  199. 

SEC.  28.  Possession  of  mining  ground,  acquired  by  an 
entry  under  a  claim  for  mining  purposes,  upon  a  tract  the 
bounds  of  which  are  distinctly  defined  by  physical  marks, 
accompanied  with  actual  occupancy  of  a  part  of  the  tract,  is 
saflficient  to  enable  the  possessor  to  maintain  ejectment  for 
the  entire  claim,  although  such  acts  of  appropriation  are 
not  done  in  accordance  with  any  local  mining  rule.  The 
exclusion,  therefore,  of  evidence  tending  to  prove  a  posses- 


572  JUSTICES'  TREATISE. 

sion  of  this  character,  is  error.  Although  mining  ground 
may  be  located  in  the  absence  of  local  regulations,  yet  the 
extent  of  such  location  is  not  without  limit.  The  quantity 
taken  must  be  reasonable;  and  whether  it  be  so  or  not  will 
be  determined  in  such  cases  by  the  general  usages  and 
customs  prevailing  upon  the  subject.  If  an  unreasonable 
quantity  be  included  within  the  boundaries  the  location 
will  not  be  effectual  for  any  purpose,  and  possession  under 
it  will  only  extend  to  the  ground  actually  occupied.  Upon 
the  question  of  reasonableness  of  the  extent  of  a  mining 
location,  a  general  custom,  whether  existing  anterior  to  the 
location  or  not,  may  be  given  in  evidence;  but  a  local  rule 
stands  upon  a  different  footing,  and  cannot  be  introduced 
to  affect  the  validity  of  a  claim  acquired  previous  to  its 
establishment.  20  Col.  198,  199. 

SEC.  29.  The  public  mineral  lands  of  this  state  are  open 
to  the  appropriation  of  any  one,  and  the  one  first  occupy 
ing  any  portion  of  the  same  makes  it  his  by  the  act  of  occu 
pancy;  and  once  his,  it  continues  his,  until  he  manifests  his 
intention  to  part  with  it  in  some  manner  known  to  the  law. 
21  Cal.  339. 

Capacity  of  Tenants  in  Common  to  Hold  under  a  Company  Name. 

SEC.  30.  Several  persons  owning  a  tract  of  mining 
claims  as  tenants  in  common  and  acting  under  a  company 
name,  have  not  the  capacity  to  take  or  hold,  in  the  name  of 
the  company,  the  interest  of  any  one  or  more  of  the  tenants 
in  common  by  forfeiture.  Tenants  in  commpn  of  a  tract  of 
mining  claims,  acting  under  a  company  name,  are  incapa 
ble,  in  the  company  name,  of  taking  and  holding  mining 
claims  by  grant  or  by  any  other  means  by  which  title  to 
real  estate  would  pass.  25  Cal.  230. 

The  Right  to  Give  Away  a  Mining  Claim. 

SEC.  31.  If  the  possession  of  the  occupant  be  continued 
in  another  by  the  expression  of  a  wish  or  desire  of  the  occu 
pant  to  another  that  he  succeed  to  the  possession,  and  he 
thereupon  takes  possession,  a  gift  is  the  result — there  is  no 
vacancy  in  the  possession  and  consequently  no  abandon 
ment.  A  mere  wish  or  desire  of  the  occupant  when  he 


MINES  AND  MINING  CLAIMS.  .  573 

leaves  the  possession  that  another  may  next  occupy,  without 
being  communicated  to  that  other  person  and  assented  to  by 
him,  and  accompanied  by  a  transfer  of  possession,  does  not 
amount  to  a  gift.  24  Cal.  339. 

How  Conveyed  or  Transferred. 

SEC.  32.  The  owner  of  a  mine  has,  in  addition  to  the 
right  of  exclusive  possession  and  enjoyment,  the  right  of 
absolute  disposition,  and  may  sell,  transfer  or  hypothecate, 
without  let  or  hindrance  from  any  one.  Contracts  for  the 
sale  of  such  interests  have  been  frequently  recognized  and 
enforced  by  the  courts.  9  Cal.  142. 

SEC.  33.  The  occupant  of  mineral  lands  may  part  with 
his  interest  by  selling  it  or  giving  it  to  another,  or  by  any 
other  mode  authorized  by  law  or  he  may  abandon  it.  24 
Cal.  339. 

SEC.  34.  The  purchaser  of  a  mining  claim  can  only  ac 
quire,  by  such  purchase,  such  right  or  title  as  his  vendor 
had  at  the  time  of  sale.  11  Cal.  366. 

SEC.  35.  The  right  to  a  mining  claim  upon  the  public 
lands  rests  upon  possession  only,  and  a  sale  by  parol  by 
one  in  possession,  accompanied  by  a  transfer  of  possession, 
transfers  the  title.  23  Cal.  178. 

SEC.  36.  A  written  conveyance  is  not  necessary  to  the 
transfer  of  a  mining  claim.  The  right  to  mining  ground, 
acquired  by  appropriation,  rests  upon  possession  only;  and 
rights  of  this  character,  not  amounting  to  an  interest  in  the 
land,  are  not  within  the  statute  of  frauds,  and  no  convey 
ance  other  than  a  transfer  of  possession  is  necessary  to  pass 
them.  Thus,  where  the  owners  of  a  mining  claim,  previ 
ously  located  by  themselves  and  others,  became  incorpo 
rated  and  placed  the  corporation  thus  formed  in  possession 
of  the  claim  as  their  successor  in  interest,  with  the  evident 
intention  that  whatever  rights  the  unincorporated  individ 
uals  had  should  pass  to  the  corporation :  Held,  that  the  title 
to  the  claim  passed  to  the  corporation  as  effectually  as  it 
wo  aid  if  the  transfer  had  been  accompanied  by  a  convey 
ance,  in  writing.  20  Cal.  198. 

SEC.  37.  The  rule  allowing  mining  claims  to  be  trans 
ferred  by  a  verbal  sale  and  delivery  of  possession,  only  ap- 


574  »  JUSTICES'  TEEATISE. 

plies  to  cases  where  the  grantor  is  in  actual  possession  and 
can  deliver  possession  to  the  grantee,  and  does  not  extend 
to  cases  where  at  the  time  of  the  sale  the  claim  is  in  the 
adverse  possession  of  third  parties.  In  such  cases  there 
must  be  a  written  conveyance  to  pass  the  title.  25  Col.  18. 

SEC.  38.  A  bonafide  parol  sale  of  'a  mining  claim,  accom 
panied  by  a  delivery  of  possession,  is  valid  as  against  a  sub 
sequent  sale  of  the  same  grantor  made  by  deed,  in  writing, 
duly  acknowledged.  The  possession  of  one  claiming  under 
a  parol  sale  or  unrecorded  bill  of  sale,  in  order  to  impart 
notice  to  a  subsequent  purchaser,  need  not  be  evidenced 
by  an  actual  inclosure  or  anything  equivalent  thereto.  23 
Gal  575. 

SEC.  39.  The  mere  passive  acquiescence  of  the  other 
partners  or  tenants  in  common  in  a  sale  of  the  interest  of 
the  plaintiff  by  a  party  having  no  title,  cannot  confer  any 
upon  the  vendee.  11  Col.  367. 

SEC.  40.  Conveyances  of  mining  claims  ma&y  be  evidenced 
by  bills  of  sale  or  instruments  in  writing,  not  under  seal, 
signed  by  the  person  from  whom  the  estate  or  interest  is 
intended  to  pass,  in  the  presence  of  one  or  more  attesting 
witnesses;  and  also  all  conveyances  of  mining  claims  here 
tofore  made  by  bills  of  sale  or  instruments  in  writing,  not 
under  seal,  shall  have  the  same  force  and  effect  as  prima 
facie  evidence  of  sale  as  if  such  conveyances  had  been  made 
by  deed  under  seal :  provided,  that  nothing  in  this  act  shall 
be  construed  to  interfere  with  or  repeal  any  lawful  local 
rules,  regulations  or  customs,  of  the  mines  in  the  several 
mining  districts  of  this  state ;  and,  provided  further,  every 
such  bill  of  sale  or  instrument  in  writing  shall  be  deemed 
and  held  to  be  fraudulent  and  void  as  against  all  persons 
except  the  parties  thereto,  unless  such  bill  of  sale  or  instru 
ment  in  writing  be  accompanied  by  an  immediate  delivery 
to  the  purchaser  of  the  possession  of  the  mining  claim  or 
claims  therein  described,  and  be  followed  by  an  actual  and 
continued  change  of  possession  thereof  or,  unless  such  bill 
of  sale  or  instrument  in  writing  shall  be  acknowledged  and 
recorded  as  required  by  law  in  the  case  of  conveyances  of 
real  estate.  Gen.  Laws,  706. 

SEC.  41.  Instruments  conveying  mining  claims  need  not 
be  under  seal.  23  Cal  347. 


MINES  AND  MINING  CLAIMS.  575 

SEC.  42.  Mining  claims  may  be  conveyed  by  bills  of  sale 
or  instruments  in  writing  not  under  seal,  and  such  convey 
ances  have  the  same  force  and  effect  as  prima  facie  evi 
dence  of  sale  as  if  made  by  and  under  seal.  26  Cal.  264. 

How  Lost. 

SEC.  43.  A  right  to  hold  and  work  a  mining  claim,  when 
acquired,  may  be  lost  by  a  failure  or  neglect  to  comply  with 
the  rules  and  regulations  of  the  miners,  relative  to  the  acr- 
quisition  and  tenure  of  claims  in  force  in  the  bar  or  diggings 
where  the  claim  is  located;  and  if  such  rules  and  regula 
tions  are  not  complied  with  by  those  holding  claims  in  the 
district,  the  ground  becomes  once  more  open  to  the  occupa 
tion  of  the  next  comer.  26  Cal.  264. 

Abandonment. 

SEC.  44.  Abandonment,  in  its  common-law  sense,  is  purely 
a  question  of  intention.  An  abandonment  takes  place  when 
the  ground  is  left  by  the  locator  without  any  intention  of 
returning  or  making  any  future  use  of  it,  independent  of 
any  mining  rule  or  regulation.  26  Cal.  264. 

SEC.  45.  Where  an  abandonment  is  sought  to  be  estab 
lished  by  the  act  of  the  party,  the  intention  above  governs; 
and  if  such  party  leave  a  mining  claim,  with  the  intention 
not  to  return,  his  abandonment  is  as  complete  if  it  exist  for 
a  minute  or  a  second  as  though  it  continued  for  years;  but 
if  he  left  with  the  intention  of  returning,  he  might  do  so  at 
any  time  within  five  years :  provided,  there  was  no  rule, 
usage  or  custom,  of  miners  of  such  a  notorious  character  as 
to  raise  a  presumption  of  an  intention  to  abandon.  11  Cal. 
366. 

SEC.  46.  An  abandonment  can  only  take  place  where  the 
occupant  leaves  the  land  free  to  the  appropriation  of  the 
next  comer,  whoever  he  may  be,  without  any  intention  to 
repossess  or  reclaim  it  for  himself,  and  regardless  and  in 
different  as  to  what  may  become  of  it  in  future.  When  an 
abandonment  takes  place  a  vacancy  in  the  possession  is 
created,  and  without  such  vacancy  no  abandonment  can 
take  place.  24  Cal.  339. 

SEC.  47.     The  place  of  deposit  of  tailings  must  be  claimed 


576  JUSTICES'  TREATISE. 

as  such  or  as  a  mining  claim,  and  the  intention  of  the  claim 
ant  must  be  manifested  by  outward  acts.  The  rights  of 
others  being  concerned,  the  intention  not  to  abandon  is  not 
sufficient  alone  to  sustain  the  right.  Although  the  inten 
tion  not  to  abandon  the  right,  may  in  fact  exist,  and  may 
be  susceptible  of  clear  proof,  still  the  party  may  fail  for 
want  of  a  clear  manifestation  of  that  intent.  9  Cal.  245. 

SEC.  48.  The  mingling  of  the  tailings  from  different 
claims  does  not  give  a  stranger  any  right 'to  the  mixed  mass. 
It  may  be  a  circumstance  to  prove  the  intention  of  those 
who  permitted  them  to  be  thus  mingled,  so  as  to  show  an 
abandonment.  But  this  is  the  extent  to  which  such  a  fact 
can  go.  If  A  can  have  a  right  to  a  place  of  deposit,  B 
may  have  also;  and  if  they  can  have  such  right  separately, 
they  can  mix  their  property  if  they  please  so  to  do.  If  par 
ties  voluntarily  mix  their  property  this  does  not  give  a  mere 
stranger  any  right  to  the  mixture.  The  parties  hold  in  com 
mon.  9  Cat.  245. 

•  SEC.  49.     The  failure  to  perform  the  amount  of  work  on 

a  mining  claim,  required  by  the  local  mining  laws  or  regula 
tions  established  and  in  force  in  the  district  where  the 
claim  is  located,  amounts  to  an  abandonment  of  the  claim, 
and  thereupon  it  may  be  occupied  and  appropriated  by  an 
other.  26  Cal.  309. 

SEC.  50.  The  law  will  not  presume  an  abandonment  of 
property  in  a  dam  and  ditch  for  mining  purposes  from  the 
lapse  of  time.  10  Cal.  181. 

When  Forfeiture  Takes  Place. 

SEC.  51.  The  term  "  forfeiture,"  as  used  in  our  mining 
customs  and  codes,  means  the  loss  of  a  right  previously 
acquired  to  mine  a  particular  piece  of  ground,  by  neglect  or 
failure  to  comply  with  the  rules  and  regulations  of  the  bar 
or  diggings  in  which  the  ground  is  situated.  26  Cal.  264. 

SEC.  52.  Where  a  forfeiture  is  claimed  under  a  mining 
regulation  or  custom,  this  regulation  or  custom  will  be 
most  strictly  construed  against  the  claim  of  forfeiture.  23 
Cal.  245. 

SEC.  53.  Where  a  forfeiture  of  an  interest  in  a  mining 
claim,  for  non-payment  of  assessments,  is  claimed  under  an 


MINES  AND  MINING  CLAIMS.  577 

agreement  entered  into  by  all  the  tenants  in  common  own 
ing  the  same,  the  parties  claiming  the  benefit  of  the  forfeit 
ure  must  show  an  exact  compliance  on  their  part  with  all 
the  conditions  in  the  agreement,  or  they  will  not  be  entitled 
to  the  forfeiture.  In  order  to  have  a  forfeiture  take  place 
there  must  be  some  person,  natural  or  artificial,  who  is 
entitled  to  receive  the  benefit  of  the  forfeiture  when  it 
accrues.  25  Cal.  230. 

SEC.  54.  Possession  of  one  partner  or  tenant  in  common 
of  a  mining  claim  is  the  possession  of  all.  Where  the 
tenant  in  common  or  partner  goes  away  and  remains  absent 
from  the  premises,  leaving  his  associates  in  possession,  it 
creates  no  presumption  of  abandonment ;  nor  does  his  re 
fusal  to  pay  or  delay  in  paying  the  expenses  of  the  busi 
ness  or  assessments  create  of  itself  a  forfeiture.  In  order 
to  the  enforcement  of  the  forfeiture  of  the  interest  in  the 
claim,  some  appropriate  action  by  suit  must  be  taken  to 
liquidate  the  demand  and  sell  the  property,  or  there  must 
be  at  least  clear  and  unequivocal  proof  of  abandonment. 
11  Cal.  366,  367. 

Partition  of. 

SEC.  55.  Where  a  mining  claim  upon  the  public  lands  is 
claimed  and  possessed  by  several  as  joint  tenants,  tenants 
in  common  or  as  coparceners  or  even  as  partners,  such 
several  interests  or  estates  are  in  the  nature  of  an  estate  of 
inheritance,  and  liable  to  be  partitioned  between  the  sev 
eral  claimants  the  same  as  other  real  property.  The  mere 
fact  that  a  mining  claim  is  owned  and  worked  by  several 
persons  as  partners,  is  no  valid  objection  to  a  partition  of 
the  same  between  the  owners,  where  the  answer  does  not 
set  up  and  it  is  not  shown  that  a  suit  in  equity  is  necessary 
to  settle  the  accounts  and  adjust  the  business  of  the  part 
nership.  23  Cal.  501. 

Mining  Partnership. 

SEC.  56.  All  written  contracts  of  copartnership  for 
mining  purposes  upon  the  lands  of  the  United  States  within 
this  state,  formed  by  two  or  more  persons,  shall  be  subject 
to  the  conditions  and  liabilities  prescribed  by  this  act. 
Any  member  of  a  copartnership  or  his  successor  in  interest 
73 


578  JUSTICES'  TEEATISE. 

in  any  mining  claim,  who  shall  neglect  or  refuse  to  pay  any 
assessment,  or  shall  neglect  to  perform  any  labor  or  other 
liability  incurred  by  the  copartnership  agreement  may, 
after  the  expiration  of  sixty  days  after  such  assessment, 
labor  or  other  liability,  has  become  due,  be  notified,  in 
writing,  by  any  remaining  partner  or  partners,  or  by  his  or 
their  agents,  that  such  assessment,  labor  or  liability,  is  due, 
which  written  notice  shall  specify  the  name  of  such  mine 
and  the  districts  wherein  it  is  located,  and  shall  particu 
larly  mention  the  liability  which  has  been  incurred;  and  if 
such  delinquent  reside  within  the  state  he  shall  be  person 
ally  served  with  such  notice;  and  if  the  person  so  notified 
shall  refuse  or  neglect  for  thirty  days  after  service  of  such 
written  notice  to  comply  with  the  requirements  of  the  co 
partnership  agreement,  the  remaining  partner  or  partners 
may  sell  the  interest  of  such  delinquent  partner  in  and  to 
such  mining  claim.  All  sales  under  the  provisions  of  this 
act  shall  be  at  public  auction  and  by  giving  five  days' 
notice  thereof  by  posting  written  notices  in  three  public 
places  within  the  mining  district  where  such  mine  is  lo 
cated.  The  notice  shall  also  specify  the  extent  of  the 
interest  to  be  sold  and  the  name  of  the  delinquent  partner 
or  partners,  and  the  time  and  place  of  such  sale,  which 
place  shall  be  within  the  district  where  the  mine  is  located. 
The  purchaser  at  such  sale  shall  acquire  all  the  rights 
and  title  of  the  delinquent  partner.  If  any  delinquent 
partner  in  any  mine  is  absent  from  the  state  or  resides 
in  any  other  state  or  territory,  the  notice  to  such  de 
linquent  shall  be  by  publication  once  a  week  for  four 
months  in  some  newspaper  published  in  the  county  where 
the  mine  is  located;  or,  if  there  be  no  newspaper  in  the 
county  then  such  notice  shall  be  published  in  some  news 
paper  in  an  adjoining  county.  After  the  expiration  of  the 
time  of  such  publication  the  interest  of  such  delinquent 
shall  be  sold  in  the  manner  prescribed  in  this  section. 
Gen.  Laws,  4649-4652. 

SEC.  57.  Where  the  several  owners  of  a  mine  unite  and 
co-operate  in  working  the  same,  they  form  a  mining  part 
nership,  which  is  governed  by  many  of  the  rules  relating 
to  ordinary  partnerships,  but  which  has  some  rules  peculiar 


MINES  AND  MINING  CLAIMS.  579 

to  itself.  One  of  these  rules  is,  that  each  owner  has  a  right 
at  any  time  to  sell  and  convey  his  interest,  and  such  sale 
does  not  dissolve  the  partnership.  Another  of  these  rules 
is,  that  the  law  does  not,  in  case  of  a  mining  partnership, 
imply  any  authority,  either  to  a  member  of  such  partner 
ship  or  to  its  managing  agent,  to  bind  the  company  or  its 
individual  members  by  a  promissory  note  or  a  contract  of 
indebtedness  executed  in  the  name  of  the  company ;  but  it 
is  incumbent  on  the  party  claiming  to  hold  the  company  for 
such  indebtedness  to  show  that  the  person  executing  or  con 
tracting  the  same  in  the  name  of  the  company  had  power 
and  authority  to  do  so.  23  Col.  199. 

SEC.  58.  Where  a  mining  company,  not  incorporated, 
forms  a  trading  partnership  with  an  individual  under  a 
firm  name,  each  member  of  the  mining  company  is  a  mem 
ber  of  the  firm.  Where  one  of  the  mining  company  was 
actively  engaged  in  the  business  of  the  partnership  as  sales 
man,  it  cannot  be  pretended  that  he  was  a  dormant  partner, 
whose  acts  would  not  bind  the  firm.  6  Col.  163,  164. 

Injury  or  Trespass  to. 

SEC.  59.  The  possession  of  agricultural  land  is  prima 
facie  proof  of  title  against  a  trespasser,  but  where  it  is 
shown  that  the  party  goes  on  mineral  lands  to  mine,  there 
is  no  presumption  that'  he  is  a  trespasser,  and  the  statutory 
presumption  that  it  is  public  land,  in  the  absence  of  proof 
of  title  in  the  person  claiming  it  as  agricultural  land,  applies. 
Burdfje  vs.  Smith,  14  Cal.  383;  Coryell  vs.  Cain,  16  Cal.  573. 
In  this  state,  although  the  larger  portion  of  the  mineral 
lands  belong  to  the  United  States,  yet  defendant  cannot 
defeat  an  action  for  mining  claims,  water  privileges  and 
the  like,  by  showing  the  paramount  title  of  the  govern 
ment.  Our  courts,  in  determining  controversies  between 
parties  thus  situated,  presume  a  grant  from  government 
to  the  first  appropriates  This  presumption,  though  of 
no  avail  against  the  government,  is  held  absolute  in  such 
controversies.  Coryell  vs.  Cain,  16  Cal.  572. 

SEC.  60.  Where  two  mining  claims  adjoin  each  other, 
and  the  owners  of  one  claim  work  across  the  dividing  line 
and  take  away  gold-bearing  earth  from  the  other  claim,  the 


580  JUSTICES'  TREATISE. 

fact  that  they  did  so  in  ignorance  of  the  location  of  the  di 
viding  line  is  no  excuse  or  justification,  and  it  is  error  to 
admit  evidence  of  such  ignorance  as  an  excuse  for  the  tres 
pass  or  in  mitigation  of  damages.  23  Col.  306. 

SEC.  61.  There  is  no  doubt  that  the  owners  of  a  ditch 
would  be  liable  for  wanton  injury  or  gross  negligence,  but 
not  for  a  mere  accidental  injury  where  no  negligence  was 
shown.  In  such  cases,  the  maxim  "sic  utere,"  etc.,  must  be 
construed  with  reference  to  the  rights  of  all  the  parties  con 
cerned,  and  no  man  can  be  deprived  of  the  due  enjoyment 
of  his  property  and  held  answerable  in  damages  for  the 
reasonable  exercise  of  a  right.  7  Cal.  340. 

SEC.  62.  The  plaintiffs  are  the  owners  of  certain  mining 
claims,  situated  in  the  bed  or  channel  of  a  stream  known 
as  "Missouri.  Canon."  The  defendants  own  claims  in  the 
same  stream,  above  and  adjoining  those  of  the  plaintiffs. 
The  claims  of  the  defendants  were  first  located.  The  com 
plaint  alleges  that  the  defendants  wrongfully  constructed  a 
flume  upon  the  claims  of  the  plaintiffs,  and  deposited 
thereon  a  large  quantity  of  tailings  from  claims  above,  and 
that  the  plaintiffs  were  greatly  injured  and  damaged  thereby. 
The  answer  admits  the  construction  of  the  flume  and  the 
deposit  of  tailings,  but  denies  that  these  acts  were  wrong 
ful,  and  avers  that  the  flume  was  constructed  by  the  defend 
ants  for  the  purpose  of  working  their  claims;  that  its  con 
struction  was  proper  and  necessary  for  that  purpose,  and 
thai  the  deposit  of  tailings  was  occasioned  by  the  ordinary 
working  of  these  claims.  There  is  no  dispute  as  to  the 
facts.  On  the  trial  of  the  case  the  court  instructed  the 
jury,  among  other  things,  that  a  person  first  locating  a 
mining  claim  in  the  bed  of  a  stream  is  entitled  to  the  chan 
nel  below  as  an  outlet,  and  that  when  such  outlet,  from  the 
usual  mining  operations  above,  becomes  obstructed,  he 
may  open  the  same;  and  if  he  can  do  so  by  no  other  means, 
may  construct  a  flume  down  the  channel  as  far  as  necessary, 
and  as  far  as  the  same  can  be  constructed  without  consider 
able  damage  to  claims  subsequently  located.  The  real 
question  in  the  case,  as  shown  by  the  defense  to  which  we 
have  referred,  and  by  this  instruction  of  the  court,  is, 
whether  the  defendants,  as  a  matter  of  absolute  legal  right, 


MINES  AND  MINING  CLAIMS.  581 

regardless  of  the  ownership  of  the  plaintiffs,  and  irrespect 
ive  of  any  local  custom  or  regulation  upon  the  subject, 
were  entitled  to  an  easement  upon  the  plaintiffs'  claims  for 
the  purposes  mentioned  in  the  answer.  Upon  this  question 
we  readily  confess  that  our  convictions  are  decidedly  adverse 
to  the  position  of  the  defendants.  We  do  not  see  upon 
what  legal  foundation  the  right  claimed  by  them  can  pos 
sibly  rest.  As  a  proposition  of  law,  the  right  of  one  person 
for  his  own  advantage  to  enter  upon  and  use  the  property 
of  another  without  his  consent,  cannot  be  maintained.  The 
doctrine  of  necessity  invoked  by  the  defendants,  and  relied 
upon  by  the  court  below,  has  no  application.  Under  cer 
tain  circumstances,  a  person  may  have  a  right  of  way  by 
necessity  over  the  land  of  another  j  but  the  doctrine  that 
one  person  may  have  a  right  by  necessity  to  go  upon  the 
land  of  another  and  erect  thereon  buildings  or  other  struc 
tures,  we  are  by  no  means  prepared  to  recognize.  The  fact 
that  the  land  is  a  mining  claim  can  make  no  difference,  for 
the  principle  is  the  same,  whatever  is  the  character  of  the 
property.  If  the  acts  of  the  defendants  were  authorized 
by  any  local  custom  or  regulation,  its  existence  should  have 
been  averred  and  proved.  Our  opinion  is,  therefore,  that 
the  acts  of  the  defendants  were  without  any  sufficient  justi 
fication,  and  that  the  court  erred  in  its  view  of  the  law  as 
given  to  the  jury.  The  defendants  had  unquestionably  the 
right  to  work  their  claims,  but  the  same  right  belonged  to 
the  owners  of  every  other  claim  on  the  stream,  and  the  fair 
and  reasonable  enjoyment  of  this  right  was  secured  by  the 
guarantee  and  protection  of  the  law.  The  channel  of  the 
stream  was  the  natural  and  necessary  outlet  for  all,  and  no 
one  had,  as  against  the  others,  the  right  to  its  exclusive  use 
for  that  purpose.  The  recognition  of  such  a  right  would 
be  in  violation  of  every  principle  of  law  and  justice.  It 
certainly  could  not  be  vindicated  upon  the  principle  qui 
prior  est  tempore,  patior  est  jure,  as  that  principle  is  legally 
understood  and  applied.  The  true  rule  undoubtedly  is, 
that  each  person  mining  in  the  same  stream  is  entitled  to 
use,  in  a  proper  and  reasonable  manner,  both  the  channel 
of  the  stream  and  the  water  flowing  therein;  and  the  maxim 
prior  tempore  patior  jure  can  only  be  invoked  where  there  is 


582  JUSTICES'  TEEATISE. 

such  a  conflict  of  rights  that  one  of  the  parties  rnnst  neces 
sarily  yield.  It  can  never  be  applied  in  excuse  or  justifica 
tion  of  a  trespass.  The  right  of  a  miner  to  be  protected 
in  the  exclusive  possession  'of  his  claim  is  as  perfect  and 
absolute  as  that  of  any  other  person  to  be  protected  in  the 
possession  of  his  land  or  any  other  property  which  he  may 
own.  But  where  from  the  situation  of  different  claims  in 
the  same. stream  the  working  of  some  will  necessarily  result 
in  injury  to  others,  if  the  injury  be  the  natural  and  neces 
sary  consequence  of  a  fair  and  reasonable  exercise  of  the 
right  which  every  claimant  has  to  work  his  claim,  it  will  be 
damnum  absque  injuria,  and  will  furnish  no  cause  of'  action 
to  the  party  injured.  What  is  a  fair  and  reasonable  exer 
cise  of  this  right  is  a  question  for  the  jury,  to  be  deter 
mined  by  them  upon  the  facts  and  circumstances  of  each 
particular  case.  15  Col.  142,  143. 

Actions  to  Secure  Possession  of. 

SEC..  63.  In  actions  respecting  miners' claims  in  a  jus 
tice's  court,  the  justice  shall  have  power  upon  application 
of  the  party  out  of  possession  of  the  claim  or  claims,  after 
notice  of  one  day  to  the  adverse  party,  to  appoint  a  receiver 
of  the  proceeds  of  the  claim  pending  the  action.  If  the 
parties  agree  upon  a  person  he  shall  be  appointed  such 
receiver.  If  the  parties  do  not  agree,  the  justice  shall  ap 
point  a  receiver,  who  shall  take  an  oath,  which  shall  be  filed 
with  the  justice,  that  he  is  not  interested  in  the  action  be 
tween  the  parties,  and  that  he  will  honestly  keep  an  account 
of  all  gold  dust  or  metals  of  any  kind,  the  proceeds  of  the 
claim  or  claims  in  dispute.  After  the  appointment  of  such 
receiver,  the  justice  shall  have  power  to  issue  a  written 
order  to  any  sheriff  or  constable  to  put  such  receiver  into 
possession  of  such  claim ;  which  order  said  sheriff  or  con 
stable  shall  execute,  and  the  receiver  shall  remain  in  pos 
session  of  the  claim  or  claims  so  long  as  said  action  may 
remain  undetermined  in  any  court.  The  court  in  which  the 
action  may  be  pending  shall  have  authority,  upon  applica 
tion  of  either  party  with  two  days'  notice  to  the  other,  from 
time  to  time,  to  make  such  orders  for  the  disposition  of  the 
proceeds  of  such  claim  or  claims  for  the  safety  of  the  same 


»  MINES  AND   MINING  CLAIMS.  "583 

as  may  seem  proper.  The  court  in  which  the  action  may  be 
pending  shall  also  have  power,  upon  application  of  the  re 
ceiver,  based  upon  his  affidavit,  to  punish  as  for  contempt 
all  persons  who  have  been  guilty  of  disturbing  the  receiver 
in  the  possession  of  the  claim.  The  receiver  mentioned 
in  this  section  shall  keep  an  accurate  account  of  all  the 
proceeds  of  the  claim  pending  action,  and  of  all  amounts 
paid  out  for  working  the  same,  and  shall  retain  the  pro 
ceeds  and  pay  the  same  over,  pursuant  to  the  order  of  the 
court.  The  receiver  shall  also  be  required,  on  demand  of 
either  party,  to  give  security  for  the  faithful  performance  of 
his  trust,  and  shall  be  allowed  for  the  same  a  reasonable 
compensation,  to  be  paid  out  of  the  proceeds  of  the  claim 
in  his  hands,  but  in  no  case  exceeding  ten  per  cent,  upon 
such  proceeds.  Gen.  Laws,  5579,  5580. 

Statute  of  Limitations. 

SEC.  64.  No  action  for  the  recovery  of  property  in  min 
ing  claims  or  for  the  recovery  of  the  possession  thereof, 
shall  be  maintained,  unless  it  appears  that  the  plaintiff,  his 
ancestor,  predecessor  or  grantor,  was  seized  or  possessed  of 
the  premises  in  question  within  two  years  before  the  com 
mencement  of  this  action.  No  cause  of  action  or  defense 
to  an  action  founded  upon  the  title  to  property  in  mining 
claims  or  to  the  rents  or  profits  out  of  the  same  shall  be 
effectual,  unless  it  appear  that  the  person  prosecuting  the 
action  or  making  the  defense,  or  under  whose  title  the  ac 
tion  is  prosecuted  or  the  defense  is  made,  or  the  ancestor, 
predecessor  or  grantor,  of  such  person  was  seized  or  pos 
sessed  of  the  premises' in  question  within  two  years  before 
the  commencement  of  the  act  in  respect  to  which  such  action 
is  prosecuted  or  defense  made.  Gen.  Laws,  4382,  4383. 

Foreign  Miners. 

SEC.  65.  The  state  has  the  power  to  require  the  payment 
by  foreigners  of  a  license  fee  for  the  privilege  of  working 
the  gold  mines  in  the  state.  1  Col.  232. 

An  Act  tc  Regulate  the  Rights'  of  the  Owners  of  Mines. 

SEC.  66.  An  act  to  regulate  the  rights  of  the  owners  of 
mines,  approved  March  9th,  1870,  provides  as  follows : 


584  JUSTICES'  TREATISE. 

t 

1st.  The  owner  or  owners  of  mines  or  mining  claims  in 
this  state  shall  have  a  right  of  way,  for  ingress  and  egress, 
for  all  necessary  purposes,  over  and  across  the  land  or  min 
ing  claims  of  others,  as  hereinafter  prescribed. 

2d.  Whenever  any  mine  or  mining  claim  shall  be  so  situ 
ated  that  it  cannot  be  conveniently  worked  without  a  road 
thereto  or  a  ditch  to  convey  water  thereto,  or  a  ditch  or  cut 
to  drain  water  therefrom,  or  without  a  flume  or  tunnel  there 
to,  or  a  place  whereon  to  dump  or  deposit  tailings,  and  such 
road,  ditch  or  drain  or  such  flume  or  tunnel,  shall  neces 
sarily  pass  over,  across  or  through  or  under,  and  such  place 
of  deposit  be  upon  mining  claims  or  other  lands  owned  or 
occupied  by  others,  then  shall  such  first-mentioned  owner 
or  owners  be  entitled  to  a  right  of  way  for  such  road,  ditch, 
drain,  flume  or  tunnel,  over,  across  or  through,  or  under  or 
to,  such  place  of  deposit  upon  such  other  mining  claims  or 
lands,  upon  compliance  with  the  provisions  of  this  act. 

3d.  Whenever  the  owner  or  owners  of  any  mine  or  min 
ing  claim  shall  desire  to  work  the  same,  and  it  is  necessary, 
to  enable  him  or  them  to  do  so  conveniently,  that  he  or  they 
should  have  a  right  of  way,  for  any  of  the  purposes  men 
tioned  in  the  foregoing  sections,  or  that'  he  or  they  should 
have  a  place  for  dumpage  and  deposit  of  tailings,  as  men 
tioned  in  the  preceding  section,  and  such  right  of  way  or 
place  of  deposit  shall  not  have  been  acquired  by  private 
agreement  between  him  or  them  and  the  owners  or  occu 
pants  of  the  claims  or  lands,  over,  across,  under  or  upon, 
which  he  or  they  seek  to  establish  such  right  of  way  or 
place  of  deposit,  then,  it  shall  be  lawful  for  him  or  them  to 
present  to  the  county  court  or  to  the  county  judge,  if  the 
court  be  not  in  session,  of  the  county  wherein  such  mine  or 
claims  are  situated,  a  petition,  praying  that  such  right  of 
way  or  place  of  deposit  be  awarded  to  him  or  them.  Such 
petition  shall  be  verified  and  shall  contain  a  particular  de 
scription  of  the  character  and  extent  of  the  right  sought;  a 
description  of  the  mine  or  claims  of  the  petitioners  and  of 
the  claims  or  lands  to  be  affected  by  such  right  or  privi 
lege,  with  the  names  of  the  owners  or  occupants  thereof. 
It  shall  also  show  that  such  right  or  privilege  has  not  been 
acquired  by  private  agreement  or  contract  between  the  re- 


MINES  AND  MINING  CLAIMS.  585 

spective  parties,  and  shall  conclude  with  a  prayer  for  the 
allowance  thereof  by  the  court  or  judge,  and  the  appoint 
ment  of  three  commissioners  to  assess  the  damages  result 
ing  from  such  allowance. 

4th.  Upon  the  receipt  of  such  petition  and  the  filing 
thereof  in  the  office  of  the  clerk  of  the  county  court,  the 
court  or  judge,  as  the  case  may  be,  shall  direct  a  citation 
to  issue  under  the  seal  of  the  court,  to  the  owners  named 
in  the  petition  of  mining  claims  or  lands  to  be  affected  by 
the  granting  of  such  right  or  privilege,  requiring  them  and 
each  of  them  to  appear  before  such  court  or  the  judge 
thereof,  if  the  court  be  not  in  session,  on  a  day  therein 
named,  which  shall  not  be  less  that  ten  days  from  the  serv 
ice  thereof,  and  show  cause  why  such  right  or  privilege 
should  not  be  awarded  or  allowed  and  such  commissioners 
appointed,  as  prayed  for.  Such  citation  shall  be  served  on 
each  of  the  parties  therein  named,  in  the  manner  prescribed 
by  law  for  the  service  of  summons  in  ordinary  proceedings 
at  law. 

5th.  Upon  the  day  named  in  the  citation  or  upon  any 
subsequent  day  to  which  the  hearing  may  be  adjourned,  the 
county  court  or  the  county  judge,  if  the  court  be  not  in  ses 
sion,  shall  proceed  to  hear  the  allegations  and  proofs  of  the 
respective  parties,  and  if  satisfied  that  the  claims  of  the  pe 
titioners  can  only  be  conveniently  worked  by  means  of  the 
right  of  way,  privilege  or  place  6"f  deposit,  prayed  for,  shall 
make  an  order  adjudging  and  awarding  to  such  petitioners 
such  right  of  way,  privilege  or  place  of  deposit,  and  ap 
pointing  three  disinterested  persons,  residents  of  the  coun 
ty,  as  a  commission  to  assess  the  damages  resulting  to  the 
owners  of  mining  claims  or  lands  affected  thereby. 

6th.  The  commissioners  so  appointed,  being  duly  sworn, 
shall  proceed  without  delay  to  examine  the  mine  or  claims 
of  the  person  or  persons  petitioning,  as  well  as  the  mining 
claims  or  lands  to  be  affected  by  the  right  or  privilege 
prayed  for.  They  may  also  hear  testimony  relative  to  the 
value  of  such  mining  claims  or  lands  and  the  damages  re 
sulting  from  such  right  or  privilege,  and  report,  in  writing, 
the  result  of  their  inquiries  to  the  court  or  judge  appoint 
ing  them.  Such  report  shall  designate  the  course  or  line 
74 


586  JUSTICES'  TBEATISE. 

and  dimensions  of  the  road,  ditch,  drain,  flume  or  tunnel, 
as  the  case  may  be,  or  the  place  of  deposit  prayed  for.  It 
shall  further  designate  the  value  of  the  lands  to  be  occupied 
by  or  appropriated  to,  and  for  such  right  of  way  or  place 
of  deposit,  and  assign  the  damages  which  each  of  the  own 
ers  or  occupants  of  mining  claims  or  lands  affected  by  such 
right  or  place  of  deposit  shall  suffer  in  consequence  thereof. 

7th.  Within  ten  days  from  the  filing  of  such  report  any 
of  the  parties  concerned  in  the  same  may  move,  for  cause 
shown  by  affidavit,  to  set  aside  the  same ;  and  if  upon 
hearing  of  such  motion,  such  court  or  judge  shall  set  aside 
or  vacate  such  report,  a  new  commission  shall  be  appointed 
which  shall  proceed  in  all  respects  as  is  provided  for  the 
first  commission.  If  no  motion  to  set  aside  the  report  of 
the  first  or  any  succeeding  commission  be  made,  as  provided 
in  the  last  section,  or  if  being  made  it  is  denied,  then  the 
same  shall  be  regarded  as  final  and  an  order  shall  be  made 
by  the  court  or  judge  in  pursuance  thereof. 

8th.  Upon  the  payment  of  the  sum  assessed  as  damages 
to  each  of  the  owners  or  occupants  of  claims  or  lauds  to 
whom  the  same  shall  have  been  awarded  by  the  report  and 
order  mentioned  in  the  preceding  section,  then  the  person 
or  persons  petitioning  shall  be  entitled  to  the  right  of  way 
or  place  of  deposit,  as  designated  and  defined  by  such  re 
port,  over  or  upon  the  land  or  claims  of  the  person  or  per 
sons  receiving  such  compensation,  and  he  or  they  may, 
upon  making  such  payment,  proceed  to  occupy  the  line, 
route,  way  or  place  of  deposit,  so  designated,  and  to  erect 
thereon  such  works  and  structures  and  make  such  excava 
tions  as  may  be  necessary  to  the  use  and  enjoyment  of  the 
right  of  way  or  place  of  deposit  so  awarded. 

9th.  Whenever  the  owner  or  owners  of  any  mine  or  min 
ing  claim  are  desirous,  in  working  the  same,  to  carry  off  the 
tailings  and  other  refuse  matter  through  and  along  any  water 
course,  ravine  or  natural  outlet,  which  is  in  whole  or  in  part 
owned  or  occupied  by  other  persons,  for  mining  or  other 
purposes,  then  such  first-mentioned  owner  or  owners  may 
proceed  in  the  manner  hereinbefore  provided  to  have  such 
right  and  privilege  awarded  to  him  or  them:  provided,  never 
theless,  that  the  county  court  or  judge  shall  not  make  such 


MORTGAGE  PLEDGE.  587 

award  or  appoint  a  .commission  unless  such  court  or  judge 
shall  be  satisfied  that  the  right  or  privilege  sought  can  be 
enjoyed  without  especial  injury  to  those  owning  or  occupy 
ing  claims  or  lands  along  or  upon  such  watercourse,  ravine 
or  outlet. 

10th.  All  costs  and  expenses  shall  be  paid  by  the  party 
making  the  application,  and  the  commissioners  appointed 
shall  receive  five  dollars  per  day  for  each  day  actually  en 
gaged  in  the  service. 

llth.  This  act  shall  take  effect  from  and  after  its  passage. 
Pub.  Laws,  1870. 


CHAPTER    LXVII 


MOETGAGE   PLEDGE. 


PLEDGES,  GENERALLY 1-2 

DISTINCTION  BETWEEN  A  PLEDGE 

AXD  CHATTEL  MORTGAGE  . .  3-9 
STATUTE  IN  REGARD  TO  CHATTEL 

MORTGAGES  . .  10 


SECS.  SECS. 

FORM  OF  CHATTEL  MORTGAGES  .         11 
MORTGAGE  OF  REAL  ESTATE  ...   12-14 


FORM  OF  MORTGAGE  OF  REAL 

ESTATE 15 


Pledges,  Generally. 

SECTION  1.  Pledges  are,  in  general  terms,  voluntary  sub 
missions  of  property  belonging  to  a  debtor  as  security  for 
the  payment  of  money. 

SEC.  2.  This  submission  may  be,  technically,  a  pledge 
or  a  mortgage  of  personal  or  real  property. 

SEC.  3.  The  chief  distinction  at  common  law  between  a 
pledge  and  chattel  mortgage  was,  that  in  a  pledge  the  title 
did  not  pass  to  the  pledgee,  who  held  only  a  lien  on  the 
property,  and  in  all  cases  the  possession  must  accompany 
the  pledge,  whilst  in  a  chattel  mortgage  the  title  of  the 
mortgagee  became  absolute  at  law  on  the  default  of  the 
mortgagor,  and  it  was  not  essential  to  the  validity  of  the  in 
strument  that  possession  of  the  mortgaged  property  should 
be  delivered.  It  is  apparent,  therefore,  that  while  the  gen 
eral  office  to  be  performed  by  each  is  the  same — to  wit:  to 
secure  the  payment  of  money  or  the  performance  of  some 
other  act — the  consequences  resulting  from  a  failure  to  per- 


588 


JUSTICES    TREATISE. 


form  are  widely  different.  In  the  case  of  a  pledge,  the  title 
remains  in  the  pledgeor,  after  condition  broken,  with  a 
right  to  redeem  at  any  time  before  a  sale  of  the  property ; 
and  if  the  property  be  sold  by  the  pledgee,  in  satisfaction 
of  his  demand,  he  cannot  become  the  purchaser  at  his  own 
sale.  But  in  the  case  of  a  chattel  mortgage  the  title  of  the 
mortgagee  becomes  absolute  at  law  on  the  default  of  the 
mortgagor,  and  on  the  foreclosure  of  the  mortgage,  the 
mortgagee  is  at  liberty  to  become  the  purchaser  at  his  own 
sale.  36  Cal.  444. 

SEC.  4.  The  mortgagee  of  personal  property  has  two 
remedies  when  default  is  made.  He  may  resort  to  a  court 
of  equity  to  foreclose  the  mortgagor's  right  to  redeem  or  to 
compel  a  redemption,  or  he  may  sell  the  property  at  a  fail- 
public  sale,  after  due  notice  to  the  mortgagor.  The  notice 
to  be  given  must  be,  as  to  time,  a  reasonable  notice,  and  it 
must  plainly  indicate  the  time  and  place.  All  the  circum 
stances — such  as  the  class  of  property,  the  season  of  the 
year,  the  locality;  as,  whether  it  be  in  a  densely-  or  sparsely- 
settled  community — will  suggest  what  notice  will  be  reason 
able.  27  Cal.  258. 

SEC.  5.  A  mortgage  of  personal  property  passes  the 
present  legal  title  in  the  property  itself  to  the  mortgagee, 
subject  to  be  revested  in  the  mortgagor,  his  heirs  or  as 
signs,  upon  the  performance  by  him  or  them  of  an  express 
condition  subsequent.  Such  is  the  effect  of  a  mortgage  of 
personal  property  at  law ;  but  in  equity,  under  proper  cir 
cumstances,  the  mortgagor  may  redeem  even  after  non-per 
formance  of  the  condition.  8  Cal.  150. 

SEC.  6.  The  following  is  one  of  the  clearest  cases  of  a 
mortgage  of  personal  property,  as  distinguished  from  a 
pledge  :  A  sold  B  three  horses  for  two  hundred  dollars 
and  gave  him  a  regular  bill  of  sale,  but  at  the  same  time 
B  gave  to  A  a  writing,  engaging,  on  the  payment  of  the  two 
hundred  dollars  in  fourteen  days,  to  return  the  horses  to  A. 
The  money  was  not  paid  at  the  time  agreed  upon  and  the 
title  to  the  property  became  absolute  in  B,  and  a  subse 
quent  tender  of  the  money  by  A  and  demand  of  the  prop 
erty  did  not  entitle  him  to  maintain  trover  for  it.  8  Cal. 
150. 


MORTGAGE  PLEDGE.  589 

SEC.  7.  In  the  case  of  a  mortgage  of  personal  property, 
the  title  being  in  the  mortgagee,  the  risk  of  loss  is  also  with 
him.  In  the  case  mentioned  in  the  preceding  section,  had 
the  horses  died  or  had  they  been  stolen  within  the  fourteen 
days,  the  loss  would  have  fallen  on  B  ;  and  as  A  did  not  pay 
the  money  within  the  time  limited,  the  property  became 
absolute  in  B,  and  A  was  not  liable  to  B  for  the  two  hun 
dred  dollars.  In  cases  of  mortgages  of  personal  property, 
if  the  mortgagee  relies  upon  his  legal  rights  and  insists  that 
the  property  becomes  his  absolutely,  the  mortgagor  will  be 
discharged  from  all  further  liability  upon  the  mortgage 
debt,  unless  there  is  something  special  in  the  case.  But 
it  is  different  in  the  case  of  a  pledge.  The  pledgee  has  a 
lien  upon,  not  the  legal  title  to,  the  property.  It  is  taken 
as  security,  and  the  legal  title  remains  in  the  pledgeor.  If 
any  loss  occur,  it  falls  upon  him.  If  the  debt  to  secure  the 
payment  of  which  the  pledge  is  made  be  not  discharged 
when  due,  the  pledgee  does  not  obtain  an  absolute  title  to 
the  property.  He  then  has  a  right  to  sell  the  pledged  prop 
erty  and  pay  himself  from  the  proceeds  ;  if  they  are  not  suf 
ficient  to  discharge  the  debt  entire,  the  pledgeor  remains 
liable  for  the  deficiency,  and  if  they  are  more  than  suffi 
cient,  the  pledgee  is  responsible  for  the  surplus.  8  Cat. 
151. 

SEC.  8.  If  the  note  of  a  third  person  is  deposited  by  a 
debtor  with  his  creditor,  as  collateral  security  for  a  debt,  it 
is  a  pledge,  and  the  ownership  remains  in  the  pawnor. 
The  authority  of  the  creditor  with  respect  to  the  note  can 
extend  no  further  than  to  receiving  the  money  due  upon  it 
without  first  calling  upon  the  debtor,  in  some  way,  to  re 
deem.  The  money,  when  received,  would  be  a  substitute 
for  the  note,  and  to  be  held  upon  the  same  terms  and  sub 
ject  to  the  same  rights  and  duties  as  the  note.  8  Cal.  152. 

SEC.  9.  Where  a  lease  is  assigned  as  security  for  the 
payment  of  a  note,  it  is  a  pledge  and  not  a  mortgage.  The 
pledgee  does  not  take  the  legal  title  by  the  assignment  or 
by  failure  of  the  pledgeor  to  pay  the  note,  but  he  has  the 
right  to  collect  the  rents  and  apply  them  on  the  note,  and 
is  responsible  for  the  surplus.  A  pledgee  has  no  right  to 
sell  until  after  demand  and  notice;  and  if  he  sells  without 


590  JUSTICES'  TEEATISE. 

demand  and  notice  to  a  party  having  full  knowledge  of  his 
title,  no  absolute  title  passes,  and  the  property  remains  in 
the  hands  of  the  purchaser  as  a  pledge.  8  Cal.  145. 

SEC.  10.  It  should  be  remembered  that  a  chattel  mort 
gage,  under  the  act  of  1857  and  the  amendment  of  1861,  is 
of  no  validity  except  between  the  parties  thereto,  unless 
the  provisions  of  the  act  are  strictly  complied  with,  which 
may  be  summed  up  as  follows  : 

1st.  It  must  be  confined  to  upholstery  and  furniture  and 
used  in  hotels  and  public  boarding-houses,  when  mortgaged 
to  secure  the  purchase-money  of  the  identical  articles  mort 
gaged,  and  not  otherwise.  Saw-mill,  grist-mill  and  steam 
boat,  machinery,  tools  and  machinery  used  by  machinists, 
foundrymen  and  other  mechanics,  steam  boilers,  steam 
engines,  locomotives,  engines  and  the  rolling  stock  of  rail 
roads,  printing  presses  and  other  printing  material,  in 
struments  and  chest  of  a  surgeon,  physician  or  dentist, 
libraries  of  all  persons,  machinery  and  apparatus  for  min 
ing  purposes. 

2d.  To  give  such  mortgage  legal  effect  (except  as  be 
tween  the  parties  thereto),  unless  the  residence  of  the  mort 
gagor  and  mortgagee,  their  profession,  trade  or  occupation, 
the  sum  to  be  secured,  the  rate  of  interest  to  be  paid, 
when  and  where  payable,  shall  be  set  out  in  the  mortgage, 
and  the  mortgagor  and  mortgagee  shall  made  affidavit  that 
the  mortgage  is  bona  fide  and  made  without  any  design  to 
defraud  or  delay  creditors,  which  affidavit  shall  be  attached 
to  such  mortgage.  Gen.  Laws,  498. 

3d.  The  mortgage  must  be  recorded  in  the  county  where 
the  mortgagor  lives,  and  also  in  the  county  or  counties 
where  the  property  is  located  or  used :  provided,  that  prop 
erty  in  transitu  from  the  possession  of  the  mortgagee  to  the 
county  of  the  residence  of  the  mortgagor  or  to  a  location 
for  use  shall,  during  a  reasonable  time  for  such  transporta 
tion,  be  considered  as  located.  Gen.  Laius,  500. 

4fch.  If  the  mortgagee  retains  the  actual  possession  of  the 
property  he  may  omit  the  recording  of  his  mortgage  during 
the  continuance  of  his  possession  of  it.  Gen.  Laws,  501. 

Nothing  in  the  above  act  [in  relation  to  chattel  mortgages] 
shall  be  construed  to  apply  to  or  shall  affect  in  any  manner 


MORTGAGE   PLEDGE. 


591 


any  bill  of  sale,  mortgage,  hypothecation  or  conveyance,  of 
any  vessel  which  is  or  shall  be  duly  recorded  in  the  office 
of  the  collector  of  customs  of  the  place  where  such  vessel  is 
registered  or  enrolled  pursuant  to  the  laws  of  the  United 
States.  Pub.  Laws,  1867-8,  111. 

Form  of  Chattel  Mortgage. 
SEC.  11.     The  following  is  a* form  of  chattel  mortgage: 

This  indenture,  made  the  . . .  .day  of ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  . . . . ,  between ,  residing  at , 

county  of  . . . . ,  state  of  . . . . ,  and  by  profession,  trade  or  occupation,  a  ..... 

the  party  of  the  first  part,  and ,  residing  at  . . . . ,  county  of  ..... 

state  of  . . . .,  and  by  profession,  trade  or  occupation,  a  .....  the  party  of  the 
second  part,  witnesseth,  that  the  said  party  of  the  first  part,  for  and  in  con 
sideration  of  the  sum  of dollars, of  the  United  States,  to  me 

in  hand  paid  by  the  said  party  of  the  second  part,  the  receipt  whereof  is 
hereby  acknowledged,  has  granted,  bargained,  sold,  assigned,  transferred 
and  set  over,  and  by  these  presents  does  grant,  bargain,  sell,  assign,  transfer 
and  set  over,  unto  the  said  party  of  the  second  part,  all  those  certain  goods 
and  chattels',  now  being  in  . . . .,  state  of  .....  and  described  as  follows,  to 
wit:  [particularly  describe  the  property]. 

To  have  and  to  hold  all  and  singular  the  said  goods  and  chattels  above 
bargained  and  sold  or  intended  so  to  be,  unto  the  said  party  of  the  second 
part,  ....  executors,  administrators  and  assigns,  forever: 

Provided,  nevertheless,  and  these  presents  are  upon  this  express .  condi 
tion,  that  if  the  said  party  of  the  first  part executors,  administrators  or 

assigns,  shall  well  and  truly  pay  unto  the  said  party  of  the  second  part 

executors,  administrators  or  assigns,  the  sum  of  ....  dollars  ....  of  the 

United  States,  on  the  day  of  ,  A.  D.  18 ...  at  the of ,  in 

the  county  of  .....  state  of  .....  and  shall  further  pay  in  ....  of  the  United 
States  unto  the  said  party  of  the  second  part,  ....  executors,  administrators 
or  assigns,  interest  upon  the  said  principal  sum  at  and  after  this  date,  at  the 
rate  of  ....  per  cent,  per  . . . . ,  on  the  ....  day  of  . . . . ,  at  said  ....  of  ...  , 
in  the  said  county  of  . . . . ,  then  these  presents  shall  be  void.  But  in  case 
default  shall  be  made  in  the  payment  of  the  said  principal  sum  or  any  one 
of  the  said  installments  of  interest,  then  it  shall  and  may  be  lawful  for,  and 
the  said  party  of  the  first  part  does  hereby  authorize  and  empower  the  said 
party  of  the  second  part,  ....  executors,  administrators  or  assigns,  with  the 
aid  and  assistance  of  any  person  or  persons,  to  enter....  dwelling-house, 
....  store  and  other  premises,  and  such  other  place  or  places  as  the  said 
goods  or  chattels  are  or  may  be  placed,  and  take  and  carry  away  the  said 
goods  and  chattels,  and  sell  and  dispose  of  the  same,  for  the  best  price  they 
can  obtain  by  due  process  of  law,  or  by  agreement  between  the  parties  of 
this  mortgage,  their  executors,  administrators  or  assigns,  which  agreement 
shall  be  entered  on  the  record  of  the  mortgage,  and  out  of  the  money  arising 
therefrom  to  retain  and  pay  the  said  sum  above-mentioned,  and  interest  as 
aforesaid,  and  all  charges  touching  the  same,  and  counsel  fees,  not  to  exceed 


592 


JUSTICES    TEEATISE. 


. . .  per  cent,  upon  the  full  amount  which  shall  then  be  due,  rendering  the 
overplus,  if  any,  unto  the  said  party  of  the  first  part,  or  to  ....  executors, 
administrators  or  assigns.  And  until  default  be  made  in  the  payment  of  the 
said  sum  of  money,  the  said  party  of  the  first  part,  executors,  administrators 
and  assigns,  may  remain  and  continue  in  the  quiet  and  peaceable  possession 
of  the  said  goods  and  chattels,  and  in  the  full  and  free  use  and  enjoyment  of 
the  same. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 

[L.S.] 

Signed,  sealed  and  delivered,  in  the  presence  of 


State  of ,  J 

county  of f  SSl 

,  of  the  county  of  . . . . ,  being  ....  duly  sworn, ....  says,  that  he 

is  ....  the  mortgagor  named  in  the  foregoing  mortgage,  and  that  the  said 
mortgage  is  bona  fide  and  made  without  any  design  to  defraud  or  delay 
creditors. 


Subscribed  and  sworn  to  before  me,  this day  of ,  A.D.  18 . . 

State  of  . . 


county  of 


>•  ss. 


,  of  the  county  of  . . . . ,  being  ....  duly  sworn  ....  says,  that  he 

is  the  mortgagee  named  in  the  foregoing  mortgage,  and  that  the  said  mort 
gage  is  bonajide  and  made  without  any  design  to  defraud  or  delay  creditors. 


Subscribed  and  sworn  to  before  me,  this clay  of ,  A.D.  18. . 


[If  there  be  any  agreement  as  to  the  manner  in  which  the  mortgaged 
goods  are  to  be  converted  into  money,  other  than  by  "due  process  of  law," 
said  agreement  must  be  entered  on  the  record  of  the  mortgage.] 

SEC.  12.  At  common  law,  a  mortgage  of  real  estate 
vested  the' legal  title  in  the  mortgagee,  subject  to  be  de 
feated  by  the  performance  of  the  condition  subsequent. 
But  this  theory  is  entirely  changed  by  our  system,  and  the 
legal  title  remains  with  the  mortgagor,  subject  to  be  divest 
ed  by  a  foreclosure  and  sale.  And,  where  regularly  sold, 
the  purchaser  obtains  whatever  title  was  in  the  mortgagor 
at  the  instant  of  time  when  he  executed  the  mortgage.  9 
Col.  125, 

SEC.  13.  Mortgages  at  the  present  day  are  considered  as 
merely  securities  for  the  payment  of  money,  and  no  breach 
of  their  conditions  can  possibly  vest  the  title  in  the  mortga 
gee.  2  Gal.  492,  493. 


MORTGAGE  PLEDGE. 


593 


SEC.  14.  A  conveyance  of  real  estate,  conditioned  to  be 
void  on  the  payment  of  a  given  sum  of  money  on  a  given 
day,  otherwise  to  be  and  remain  in  full  force  and  virtue,  is 

4  Col.  102. 


a  mortgage  and  not  a  conditional  sale. 


Form  of  Mortgage  of  Real  Estate. 

SEC.  15.  The  following  is  a  form  of  mortgage  of  real 
estate : 

This  indenture,  made  the  ....  day  of  . . . . ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and  . . . . ,  between  and  ,  the 

party  of  the  second  part,  witnesseth,  that  the  said  party  of  the  first  part,  for 
in  consideration  of  the  sum  of  ....  dollars,  ....  of  the  United  States  of 
America,  to  ....  in  hand  paid,  do  ....  grant,  bargain,  sell,  convey  and  con 
firm,  unto  the  said  party  of  the  second  part  and  to  ....  heirs  and  assigns  for 
ever,  all  that  certain  [here  describe  the  property].  Together  with  all  and 
singular  the  tenements,  hereditaments  and  appurtenances,  thereto  belonging 
or  in  any  wise  appertaining. 

This  conveyance  is  intended  as  a  mortgage,  to  secure  the  payment  of  the 
note  of  which  the  following  is  a  copy  [here  copy  the  note],  and  these  pres 
ents  shall  be  void  if  such  payment  be  made .  But  in  case  default  be  made  in 
the  payment  of  the  principal  or  interest  as provided,  then  the  said- 
party  of  the  second  part,  his  executors,  administrators  and  assigns,  are  here 
by  empowered  to  sell  the  said  premises  with  all  and  every  of  the  appurte 
nances  or  any  part  thereof,  in  the  manner  prescribed  by  law,  and  out  of  the 
money  arising  from  such  sale,  to  retain  the  said  principal  and  interest,  to 
gether  with  the  cost  and  charges  of  making  such  sale  [here,  if  such  be  the 
agreement,  you  may  insert  the  payment  of  fees  of  attorney] ;  and  the  over 
plus,  if  any  there  be,  shall  be  paid  by  the  party  making  such  sale,  on  demand, 
to  the  said  party  of  the  first  part  and  his  heirs  or  assigns. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto  set  his 
hand  and  seal,  the  day  and  year  first  above  written. 

[L.S.] 

Signed,  sealed  and  delivered,  in  presence  of 

75 


594 


JUSTICES    TREATISE. 


CHAPTER    LXVIII. 
NEW  TEIALS. 


SECS. 

NEW  TEIAL  DEFINED 1-3 

SURPRISE  AS  A  GROUND  FOR  A 

NEW  TRIAL 4-8 

UNPREPAREDNESS 9-10 

EXCESSIVE  DAMAGES 11-12 

VERDICT  NOT  SUSTAINED  BY  EVI 
DENCE 13 

CONFLICTING  EVIDENCE 14-16 

NEWLY-DISCOVERED  EVIDENCE..  17-25 
IMPROPERL Y-ADMITTED  EVI 
DENCE 26-29 

EVIDENCE  GIVEN  BY  MISTAKE..  30-31 


SECS. 

DISQUALIFICATION  OF  JUROR 32 

DEFENDANT  NOT  LIABLE 33 

THE  MOTION 34-35 

AFFIDAVIT  ON  MOTION  FOR 36-39 

NOTICE  OF  MOTION  FOR 40-41 

STATEMENT  ON  MOTION  FOR.  . . .  42-43 

COURT  MAY  IMPOSE  TERMS 44 

BULES  TO  BE  OBSERVED  ON  AP 
PLICATION  FOR 45 

EFFECT  OF  GRANTING    A    NEW 
TRIAL.  . 


New  Trial  Defined. 

SECTION  1.  A  new  trial  is  a  re-examination  of  an  issue  of 
fact  in  the  same  court  after  a  trial  and  decision  by  a  jury, 
court  or  referees.  Pr.  Act,  192. 

SEC.  2.  A  new  trial  may  be  granted  by  the  justice,  on 
motion,  within  ten  days  after  the  entry  of  judgment  for  any 
one  of  the  following  causes : 

1st.  Accident  or  surprise,  which  ordinary  prudence  could 
not  have  guarded  against. 

2d.  Excessive  damages,  appearing  to  have  been  given  un 
der  the  influence  of  passion. 

3d.  Insufficiency  of  the  evidence  to  justify  the  verdict  or 
other  decision. 

4th.  Newly-discovered  evidence  material  for  the  party 
making  the  application,  which  he  could  not  with  reasonable 
diligence  have  discovered  and  produced  at  the  time.  Pr. 
Act,  622. 

SEC.  3.  The  power  to  grant  new  trials  is  one  exclusively 
of  discretion — a  legal  discretion.  2  CaL  182;  22  Gal.  82; 
3  CaL  59;  16  CaL  358.  The  terms  upon  which  a  court  will 
grant  a  new  trial  is  also  a  matter  of  discretion,  which  is 
usually  exercised  in  reference  to  the  conduct,  management 
and  peculiar  circumstances,  of  the  trial.  13  CaL  54.  Nor 
will  the  consent  of  parties  to  an  action,  after  trial,  that  a 


NEW  TEIALS.  595 

new  trial  be  granted,  divest  a  court  of  its  discretion.  If  it 
were  otherwise,  parties  would  have  it  in  their  power  to  con 
tinue  litigation  indefinitely.  15  Gal.  90. 

Surprise  as  a  Ground  for  a  New  Trial. 

SEC.  4.  Mere  surprise  at  the  evidence  of  the  witnesses 
of  the  defendant  is  not  sufficient.  Under  such  circum 
stances  a  nonsuit  should  have  been  submitted  to  before 
verdict.  7  Cal.  40.  Unless  a  party  has  been  misled  by 
previous  statements  of  a  witness  of  the  adverse  party  as  to 
what  he  would  swear  to,  his  testimony,  when  given,  though 
it  may  surprise,  is  no  ground  for  a  new  trial.  6  Cal.  228. 
If  testimony  be  given  at  a  trial  which  relates  to  a  point  not 
necessarily  involved  in  the  decision  of  the  action,  even 
though  it  be  false,  unless  it  had  some  influence  on  the 
judgment,  is  no  ground  for  a  new  trial ;  but  if  false  testi 
mony,  given  by  mistake  or  otherwise,  may  have  influenced 
the  verdict,  particularly  if  ordinary  prudence  could  not 
have  avoided  it,  a  new  trial  should  be  granted.  21  Cal. 
397;  3  Cal.  114;  19  Cal.  29;  24  Cal.  237. 

SEC.  5.  An  affidavit  of  a  party  that  he  was  surprised  at 
the  admission  of  a  witness  on  the  trial  because  his  attorney 
had  advised  him  that  the  witness  was  incompetent,  and  that 
he  was  also  surprised  by  the  testimony  of  the  witness  in 
stating  a  certain  conversation  incorrectly,  is  not  sufficient 
to  authorize  the  granting  of  a  new  trial  on  the  ground  of 
surprise.  22  Cal.  160. 

SEC.  6.  Where  a  party  to  an  action,  previous  to  the  trial 
of  the  same,  is  told  by  a  witness  that  he  will  testify  in  a 
certain  manner  in  relation  to  a  fact  material  to  the  issue, 
and  the  party  to  whom  the  declaration  is  made,  relying  on 
the  same,  neglects  to  procure  other  testimony,  and  secures 
the  attendance  of  the  witness,  and  when  called  to  the  stand 
the  witness,  either  by  collusion  with  the  party  against 
whom  he  is  called  or  by  reason  of  any  fact  or  occurrence 
for  which  the  party  calling  him  is  not  responsible,  testifies 
contrary  to  what  he  had  previously  stated  he  should  do — 
this  is  a  surprise  in  the  sense  in  which  that  word  is  used  in 
the  law  of  new  trials,  and  a  new  trial  will  be  granted,  pro 
vided  the  party  applying  for  the  same  shows  that  he  will  be 


596  JUSTICES'  TREATISE. 

able  on  the  new  trial  to  supply  the  testimony  required.  In 
such  case  it  is  not  necessary  for  the  party  surprised  to  move 
for  a  continuance  at  the  time.  24  Gal.  85. 

SEC.  7.  Surprise  at  the  ruling  of  the  court,  on  the  trial, 
as  to  the  admission  of  testimony,  is  not  ground  for  a  new 
trial.  10  Col.  523. 

SEC.  8.  And  where,  in  such  case,  plaintiffs  were  permit 
ted  to  prove  and  recover  on  a  title  other  than  the  one  set 
up,  it  was  error  in  the  court  below  to  refuse  a  new  trial,  the 
motion  for  which  was  based  on  affidavit  of  defendant  that 
he  was  taken  by  surprise  arising  out  of  the  frame  of  the 
pleadings,  and  that  he  could  have  rebutted  plaintiff's  case 
but  for  this  surprise.  16  Cal.  87. 

Unpreparedness. 

SEC.  9.  A  party  who  is  unprepared  for  trial  at  the  time 
of  the  calling  of  the  case  should  move  for  a  continuance ; 
and  if  he  fail  to  do  this,  he  waives  his  want  of  preparation, 
and  cannot  afterwards,  when  judgment  has  gone  against 
him,  move  for  a  new  trial  on  this  ground.  11  Cal.  21. 

SEC.  10.  The  parties  must  come  to  trial  prepared,  at 
their  peril;  and  if  either  party  has  any  good  excuse  for  not 
being  prepared,  he  is  entitled  of  right  to  a  postponement  of 
the  trial.  It  has,  therefore,  been  repeatedly  held,  that  the 
subsequent  allegation  of  a  party  that  he  was  ,not  prepared, 
is  no  reason  for  granting  a  new  trial,  unless  it  be  founded 
on  a  discovery  of  testimony  of  which  the  party  was  not  at 
the  time  apprised.  11  Cal.  22. 

Excessive  Damages. 

SEC.  11.  The  power  of  the  court  to  grant  a  new  trial  on 
the  ground  of  excessive  damages  is  seldom  exercised.  This 
results  as  much  from  the  paucity  of  cases  in  which  such  a 
complaint  is  made  as  from  the  indisposition  of  judges  to 
interfere  with  the  measure  of  damages  which  results  from 
the  deliberation  of  a  jury;  but  there  occasionally  occur 
cases  in  which  even  this  diffidence  on  the  part  of  courts  of 
law  is  totally  overcome  by  the  gross  inconsistency  of  the 
verdict  in  its  relation  to  the  facts.  5  Cal.  411. 


NEW  TRIALS.  597 

SEC.  12.  In  such  case  the  verdict  will  not  be  disturbed, 
on  motion  for  a  new  trial,  unless  the  amount  is  so  large  as 
to  induce  a  reasonable  person,  upon  hearing  the  circum 
stances,  to  declare  it  outrageously  excessive  or  as  to  sug 
gest,  at  the  first  blush,  passion  or  prejudice  or  corruption, 
on  the  part  of  the  jury.  Wheaton  vs.  N.  B.  and  M.  R.  B. 
Co.,  36  Cal.  590. 

Verdict  not  Sustained  by  Evidence. 

SEC.  13.  Where  the  verdict  of  the  jury  is  clearly  against 
the  evidence,  a  new  trial  will  be  awarded.  8  Cal.  159.  On 
motion  for  a  new  trial,  on  the  sole  ground  that  the  verdict 
is  not  sustained  by  the  evidence,  the  court  below,  in  pass 
ing  on  the  motion,  cannot  disregard  any  portion  of  the  evi 
dence  before  the  jury.  The  question  as  to  the  competency 
of  the  evidence  cannot  be  raised  on  such  motion.  A  ver 
dict  obtained  upon  incompetent  evidence  may  be  set  aside; 
but  this  cannot  be  done  if  the  evidence  were  admitted  with 
out  objection,  nor  can  it  be  done  upon  the  ground  that 
-  effect  was  given  to  the  evidence  by  the  jury,  even  if  objected 
to.  In  such  cases,  that  which  vitiates  the  verdict  is  the 
error  of  the  court  in  admitting  the  evidence,  and  if  the 
party  seeking  to  set  aside  the  verdict  be  not  in  position  to 
take  advantage  of  this  error,  he  cannot  object  that  the  evi 
dence  was  improperly  admitted.  McCloud  vs.  O'Neall,  16 

Cal.  397. 

Conflicting  Evidence. 

SEC.  14.  Where  the  evidence  is  conflicting  a  new  trial 
will  not  be  granted.  23  Cal.  219. 

SEC.  15.  Where  the  proofs  are  conflicting  it  is  not  error 
to  refuse  a  new  trial.  13  Cal.  58. 

SEC.  16.  Where  the  evidence  is  conflicting  the  granting 
or  refusing  of  a  new  trial  rests  in  the  discretion  of  the 
court.  10  Cal.  301.  If  the  finding  of  the  court  is  contrary 
to  the  weight  of  evidence,  yet  if  there  is  some  evidence  that 
sustains  the  finding,  the  judgment  will  not  be  disturbed  by 
the  appellate  court.  Lick  vs.  Madden,  36  Cal.  208. 

^B 

Newly-discovered  Evidence. 

SEC.  17.  Newly-discovered  evidence,  which  is  merely 
cumulative,  affords  no  ground  for  a  new  trial.  23  Cal.  419. 


598  JUSTICES'  TREATISE. 

SEC.  18.  The  discovery  of  new  evidence,  which  is  merely 
cumulative,  affords  no  ground  for  a  new  trial.  24  Col.  512. 

SEC.  19.  In  cases  of  conflicting  testimony,  newly-dis 
covered  evidence,  merely  cumulative,  is  no  ground  for  a 
new  trial.  6  Cal  228. 

SEC.  20.  A  new  trial  will  not  be  granted  because  of  the 
discovery  of  new  evidence  which  is  merely  cumulative  and 
which,  if  produced,  would  only  tend  to  contradict  a  witness 
of  the  opposing  party.  22  Cal.  160. 

SEC.  21.  A  new  trial  will  not  be  granted  on  the  ground 
of  newly-discovered  evidence  which  is  merely  cumulative 
and  going  to  contradict  the  witnesses  of  the  other  party.  7 
Cal.  40. 

SEC.  22.  Motions  for  new  trial  on  the  ground  of  newly- 
discovered  evidence  regarded  with  distrust  and  disfavor, 
and  the  strictest  showing  of  diligence  and  all  other  facts 
necessary  is  required.  This  is  especially  true  when  the 
new  testimony  is  to  impeach  a  witness  on  the  trial  or  is 
merely  cumulative.  The  party  must  show  by  his  own  affi 
davit  that  he  did  not  know  of  this  evidence  and  could  not 
by  due  diligence  have  obtained  it;  the  affidavit  of  a  witness 
is  not  sufficient.  [In  this  case  the  party  himself  was  pres 
ent.]  Baker  vs.  Joseph,  16  Cal.  180. 

SEC.  23.  The  last  assignment  involves  the  question  of 
the  denial  of  the  motion  for  a  new  trial  on  the  ground  of 
newly-discovered  evidence.  Applications  for  this  cause  are 
regarded  with  distrust  and  disfavor.  The  temptations  are 
so  strong  to  make  a  favorable  showing  after  a  defeat  in  an 
angry  and  bitter  controversy  involving  considerable  inter 
ests,  and  the  circumstance  that  testimony  has  just  been  dis 
covered  when  it  is  too  late  to  introduce  it,  that  courts  re 
quire  the  very  strictest  showing  to  be  made  of  diligence  and 
all  other  facts  necessary  to  give  effect  to  the  claim.  Es 
pecially  is  the  rule  held  in  its  strictness  when  the  new  tes 
timony  is  to  impeach  a  witness  on  the  trial  or  is  merely  cu 
mulative.  So  it  is  said  by  Graham  and  W.  on  New  Trials 
(Vol.  1,  4782) :  "The  party  applying  on  the  ground  of  new 
ly-discovered  evidence  must  make  his  diligence  apparent, 
for  if  it  is  even  left  doubtful  that  he  knew  of  the  evidence 
he  will  not  succeed  in  his  application."  The  affidavit  of 


NEW  TKIALS.  599 

Joseph  shows  no  compliance  with  this  rule.  He  must  show 
by  his  own  affidavit  that  he  had  not  this  knowledge  and 
could  not  by  due  diligence  have  obtained  it.  The  affidavit 
of  a  witness  is  not  enough.  In  this  case  the  affidavit  of 
Joseph  seems  to  ignore  the  exercise  of  diligence  in  procur 
ing  this  testimony  now  professed  to  have  been  discovered. 
Much  must  be  left  to  the  discretion  of  the  judge  in  passing 
upon  these  applications.  16  Cal.  176. 

SEC.  24.  A  new  trial  on  the  ground  of  newly-discovered 
evidence  should  not  be  granted  where  such  evidence  is 
entirely  cumulative,  and  if  the  evidence  is  that  of  a  witness 
whose  deposition  was  used  on  the  trial,  it  would  be  a  dan 
gerous  practice  to  admit  such  witness  to  come  in  after  a 
verdict  and  patch  up  his  testimony,  particularly  where  the 
verdict  shows  that  the  jury  disbelieved  his  first  statement. 
It  is  reasonable  to  believe  that  he  disclosed  at  least  all  he 
knew  in  his  first  deposition,  and  no  greater  latitude  should 
be  allowed  in  such  a  case  than  there  would  be  had  the 
witness  been  actually  present  and  examined  on  the  trial.  5 
Cal.  342. 

SEC.  25.  Where,  during  the  progress  of  a  trial,  the  ex 
istence  or  the  materiality  of  absent  evidence  is  first  dis 
covered,  the  party  desiring  such  evidence  should  move  for 
a  continuance  until  it  can  be  obtained,  and,  failing  to  do 
this,  he  cannot  have  a  new  trial  on  the  ground  that  the  evi 
dence  was  newly  discovered.  22  Cal.  160. 

Improperly-admitted  Evidence. 

SEC.  26.  The  admission  by  the  court,  under  the  objec 
tion  of  defendants,  of  improper  evidence  offered  by  plaint 
iff  to  prove  a  fact  alleged  in  his  complaint  and  not  denied 
in  the  answer,  is  no  cause  for  granting  a  new  trial.  21  Cal. 
215. 

SEC.  27.  If  the  court  errs  in  the  admission  of  testimony 
during  the  trial,  but  afterwards  instructs  the  jury  to  dis 
regard  such  testimony,  the  error  is  not  sufficient  to  entitle 
the  party  objecting  to  the  testimony  to  a  new  trial.  25 
Cal  504. 

SEC.  28.  A  new  trial  will  not  be  granted  on  account  of 
the  admission  of  improper  evidence  to  prove  a  fact  not 


600  JUSTICES'  TREATISE. 

material  to  the  decision  of  the  action,  and  independent  of 
which  the  verdict  is  supported.     21  Col.  220;  20  Col.  437. 

SEC.  29.  If  improper  evidence  is  permitted  to  be  given 
to  the  jury,  a  new  trial  will  be  granted,  unless  the  court 
can  see  that  such  evidence  could  have  had  no  influence 
upon  the  verdict.  1  Col.  93. 

Evidence  Given  by  Mistake. 

SEC.  30.  The  mistake  of  counsel  as  to  the  competency  of 
a  witness  is  no  ground  for  granting  a  new  trial.  9  Col.  568. 

SEC.  31.  In  passing  upon  applications  for  a  new  trial, 
much  must  be  left  to  the  discretion  of  the  judge  below;  and 
we  interfere  reluctantly  with  the  exercise  of  that  discretion. 
Two  affidavits  were  made  by  the  witness  Archibald — the 
last  some  months  after  the  first,  and  after  the  time  for  filing 
affidavits  or  statements  on  the  motion  had  elapsed.  The 
court  was  not  bound  to  receive  this  last  affidavit,  and 
should  not  have  considered  it  unless  some  good  reason 
were  shown.  But  it  was  not  bound,  after  having  received 
it,  to  give  it  conclusive  effect,  especially  as  the  affidavit  is 
not  definite  as  to  the  fact  of  mistake  in  the  testimony  on 
the  trial.  A  very  clear  showing  of  mistake  by  the  witness 
as  to  a  material  fact  deposed  to  by  him  should  be  made  to 
induce  the  court  to  grant  a  new  trial  on  this  ground,  and 
then  it  should  appear  that  the  mistake  was  injurious  to 
the  party,  and  that  he  had  no  means  or  had  used  due  dili 
gence  to  counteract  the  mistake  or  to  correct  it.  In  a  long 
and  severely-litigated  case,  with  many  witnesses,  it  would 
scarcely  ever  happen  that  some  one  of  them  would  not  be 
willing  to  depose  that  his  language  when  on  the  stand 
needed  some  qualification,  or  that  his  memory  was  confused 
or  uncertain  as  to  some  fact  to  which  he  had  sworn  without 
properly  qualifying  his  statements.  It  would  be  a  premium 
for  importunity  and  improper  acts — though  there  is  no  sus 
picion  of  such  a  course  here — to  hold  that  a  new  trial 
should  be  granted  whenever  a  witness  was  willing  to  qualify 
the  statements  he  had  made  on  the  stand.  At  any  rate,  we 
would  not  be  justified  in  holding  that  the  court  below  erred 
in  refusing  to  grant  a  new  trial  for  the  cause  assigned.  17 
Cal.  388. 


NEW  TBIALS.  601 

Disqualification  of  Juror. 

SEC.  32.  A  new  trial  should  not  be  granted  upon  affida 
vit  that  one  of  the  jurors  "knew  and  was  aware  of  the  cir 
cumstances  connected  with  that  affair " — the  alleged  assault 
and  battery — prior  to  being  summoned  as  a  juror.  Such 
knowledge  would  not  disqualify  a  juror.  1  Gal.  38. 

Defendant  not  Liable. 

SEC.  33.  Where,  as  a  question  of  law,  it  is  beyond  dispute 
that  the  defendant  is  not  liable  and  the  court  might  well 
have  granted  a  nonsuit  or  instructed  the  jury  to  bring  in  a 
verdict  for  the  defendant,  a  new  trial  should  be  granted. 
3  CaL  420. 

The  Motion. 

9 

SEC.  34.  The  motion  for  a  new  trial  is  an  affirmative 
proceeding — the  burden  of  maintaining  .the  propriety  of 
granting  which  is  cast  upon  the  party  moving ;  and  there  is 
no  more  reason  why  the  moving  party  should  not  attend  in 
such  a  case,  by  himself  or  counsel,  upon  the  court,  when 
the  motion  is  brought  up  for  hearing,  than  there  is  that  a 
plaintiff  should  be  absent  when  his  case  is  first  called,,  and 
expect,  if  it  be  dismissed,  to  avail  himself  of  errors  he  may 
assign  on  appeal.  Having  abandoned  his  motion  by  his 
own  default,  the  defendant  cannot  bring  the  merits  of  the 
motion  here  by  appeal.  15  CaL  44. 

SEC.  35.  The  application  shall  be  made  upon  affidavit 
and  notice.  The  affidavit  shall  be  filed  with  the  justice, 
with  a  statement  of  the  grounds  upon  which  the  party  in 
tends  to  rely.  The  adverse  party  may  use  counter-affida 
vits  on  the  motion,  provided  they  be  filed  one  day  previous 
to  the  hearing  of  the  motion.  Pr.  Act,  623. 

Affidavit  on  Motion  for. 

SEC.  36.  The  affidavit  for  a  new  trial  upon  the  ground  of 
newly-discovered  evidence,  should  affirmatively  show  that 
the  evidence  claimed  to  be  newly  discovered  was  discovered 
since  the  trial,  in  what  particular  such  evidence  was  ma 
terial,  what  important  fact  it  would  tend  to  establish,  that 
due  diligence  was  used,  why  it  could  not  with  reasonable 
76 


602  JUSTICES'  TBEATISE. 

diligence  have  been  discovered  and  produced  at  the  trial  of 
the  cause.  3  Col.  114. 

SEC.  37.  On  a  motion  for  a  new  trial  on  the  ground  of 
newly-discovered  evidence,  the  affidavit  of  one  of  the  de 
fendants  as  to  what  an  absent  witness  will  testify  is  insuffi 
cient.  It  should  be  accompanied  by  the  affidavit  of  the 
witness  himself.  The  absence  of  the  witness  and  the  con 
sequent  inability  of  the  defendant  to  obtain  the  affidavit  in 
time  is  not  a  sufficient  excuse  for  its  non-production.  If 
necessary,  application  should  be  made  to  the  court  for  ad 
ditional  time  to  obtain  and  file  it.  11  Col.  199. 

SEC.  38.  In  an  affidavit  for  a  new  trial,  the  allegation  of 
the  affiant  that  "as  he  is  informed  and  believes  the  dam 
ages  assessed  were  excessive  and  more  than  could  be  recov 
ered  on  a  fair  trial  of  the  action,"  is  insufficient  as  a  state 
ment  of  a  meritorious  defense  upon  which  to  justify  any 
disturbance  of  the  verdict.  The  facts  should  be  stated 
from  which  the  court  can  perceive  whether  the  damages  are 
excessive,  and  whether  on  another  trial  there  would  be  any 
probability  of  a  verdict  for  a  less  amount,  or  that  there  is 
any  defense  to  the  claim.  19  CaL  29. 

SEC.  39.  It  is  not  error  for  the  court  to  exclude  affida 
vits  filed  on  a  motion  for  a  new  trial  which  are  written  in  a 
foreign  language.  23  CaL  419. 

Notice  of  Motion  for. 

SEC.  40.  On  motion  for  a  new  trial,  the  filing  of  a  coun 
ter  statement  is  a  waiver  of  objections  to  want  of  notice  of 
the  intention  to  move  for  a  new  trial.  The  object  of  the 
notice  was  accomplished  without  it.  9  CaL  76. 

SEC.  41.  A  justice  cannot  after  judgment  grant  a  new 
trial  without  notice,  and  in  the  party's  absence.  Any  sub 
sequent  action  in  the  presence  of  the  party — his  objection  on 
the  above  ground  being  overruled — is  void,  and,  therefore, 
only  the  first  judgment  can  be  appealed  from.  11  Ind.  335. 

Statement  on  Motion  for. 

SEC.  42.  In  a  statement  for  a  new  trial,  the  evidence 
may  be  simply  referred  to  and  need  not  be  contained  in  the 
statement  itself.  9  CaL  211. 


NEW  TRIALS.  603, 

SEC.  43.  The  court  may  refuse  a  new  trial,  provided  the 
successful  party  will  consent  to  a  reduction  of  his  judg 
ment.  8  Col.  294. 

Court  May  Impose  Terms. 

SEC.  44.  The  court  may  impose  terms  in  granting  or  re 
fusing  a  new  trial.  In  requiring  a  remittur  [remittitur]  of  a 
portion  of  the  judgment  as  terms  for  refusing  a  motion  for 
a  new  trial,  the  court  uses  a  sound  and  admitted  discretion. 
It  is  only  saying,  that  although  the  verdict  is  excessive,  yet 
had  it  been  so  much  less  it  would  not  be  excessive.  By  the 
reduction,  the  action  of  both  court  and  jury  is  made  to  co 
incide  pro  tanto  against  the  defendant,  and  where  that  is  the 
case,  the  result  of  the  coincidence  ought  to  be  the  measure 
of  the  judgment.  4  Cal.  383. 

Rules  to  be  Observed  on  Application  for. 

SEC.  45.  There  are  three  distinct  steps  recognized  by  the 
practice  act  in  a  proceeding  to  obtain  a  new  trial,  for  the 
taking  of  each  of  which,  except  the  last,  a  particular  period 
of  time  is  allowed :  1st.  A  notice  of  intention  to  move  for 
a  new  trial.  2d.  Filing  and  serving  statement  or  affidavit. 
3d.  The  motion  for  a  new  trial.  27  Cal.  337. 

SEC.  46.  An  order  extending  the  time  for  taking  either 
of  these  steps  should  express  with  precision  the  object  to 
be  obtained.  27  Cal.  337. 

SEC.  47.  When  the  statute  speaks  of  notice  of  motion,  it 
means  written  notice.  12  Cal.  448. 

SEC.  48.  A  notice  of  intention  to  move  for  a  new  trial 
may  be  extended  by  the  court  thirty  days.  27  Cal.  113. 

SEC.  49.  The  statute  prescibing  the  practice  in  motions 
for  new  trials  is  plain  and  simple.  The  moving  party  pre 
pares  his  statement  and  submits  it  to  the  opposite  party. 
If  satisfactory  to  him,  they  add  a  certificate,  which  they 
sign.  If  not,  he  proposes  amendments  and  submits  them  to 
the  moving  party,  and  if  they  are  accepted  by  him,  tho 
statement  is  then  engrossed  accordingly,  and  to  the  en 
grossed  copy  a  certificate  is  added  and  signed  by  them,  to 
the  effect  that  the  statement  is  correct  and  agreed  to  by 
them.  If  they  cannot  agree,  the  statement  and  proposed 


604  JUSTICES'  TREATISE. 

amendments  are  submitted  to  the  judge,  who  allows  or 
denies  according  to  circumstances.  After  the  judge  has 
thus  determined  what  shall  constitute  the  statement,  it  is 
engrossed  accordingly,  and  a  certificate  added  to  the  effect 
that  it  is  correct,  and  if  not  signed  by  counsel  must  be 
signed  by  the  judge.  Nothing  can  be  regarded  by  the  su 
preme  court  as  a  statement  which  is  not  authenticated  in 
one  of  these  modes.  30  Cal.  510. 

SEC.  50.  Evidence  not  bearing  on  the  points  stated 
should  be  excluded.  27  Gal.  107'. 

SEC.  51.  Where  the  merits  of  the  case  were  not  investi 
gated  in  the  lower  courts  by  reason  of  an  uncertainty  as  to 
the  proper  mode  of  proceeding  under  the  anomalous  provi 
sions  of  the  practice  act  relating  to  interventions,  the  su 
preme  court  awarded  a  new  trial,  although  the  decision  of 
the  court  below  upon  the  main  question  involved  was  ap 
proved,  and  the  only  error  disclosed  might  have  been  cured 
by  a  direction  to  modify  the  judgments.  21  Cal.  280. 

Effect  of  Granting  a  New  Trial. 

SEC.  52.  Granting  new  trial  vacates  the  judgment.  An 
order  vacating  a  verdict  or  finding  and  granting  a  new  trial, 
necessarily  vacates  the  judgment  in  the  case  resting  on  such 
verdict  or  finding.  28  Cal.  527;  34  Cal.  624. 


CHAPTER    LXIX. 
NONSUIT. 


SECS. 
1 

MOTION    FOE, 

SHOULD    STATE 

a 

GROUNDS  . 

WHEN,  SHOULD  BE  GBANTED  .  . 

.       3-8 

Statute. 

SECTION  1.  An  action  may  be  dismissed  or  a  judgment 
of  nonsuit  entered  in  the  following  cases : 

1st.  By  the  plaintiff  himself,  at  any  time  before  trial, 
upon  the  payment  of  costs,  if  a  counter  claim  has  not  been 
made.  If  a  provisional  remedy  has  been  allowed,  the  un- 


NONSUIT.  605 

dertakiiig  shall  thereupon  be  delivered  by  the  clerk  to  the 
defendant,  who  may  have  his  action  thereon. 

2d.  By  either  party,  upon  the  written  consent  of  the 
other. 

3d.  By  the  court,  when  the  plaintiff  fails  to  appear  on  the 
trial  and  the  defendant  appears  and  asks  for  the  dismissal. 

4th.  By  the  court,  when  upon  the  trial  and  before  the 
final  submission  of  the  case,  the  plaintiff  abandons  it. 

5th.  By  the  court,  upon  motion  of  the  defendant,  when 
upon  the  trial  the  plaintiff  fails  to  prove  a  sufficient  case 
for  the  jury.  The  dismissal  mentioned  in  the  first  two 
subdivisions  shall  be  made  by  an  entry  in  the  clerk's  regis 
ter.  Judgment  may  thereupon  be  entered  accordingly. 
Pr.  Act,  148. 

It  is  a  Question  of  Law. 

SEC.  2.  The  granting  of  a  nonsuit  on  the  facts  is  a 
question  of  law.  13  Gal.  40. 

When  it  shall  be  Granted. 

SEC.  3.  A  justice  may  nonsuit  the  plaintiff  when,  in  his 
opinion,  the  testimony  offered  by  him  does  not  support  the 
action.  12  Johns.  299. 

SEC.  4.  Nonsuit  is  not  proper  where  there  is  any  evi 
dence  tending  to  prove  the  indebtedness.  13  Cal.  40. 

SEC.  5.  Plaintiff  has  a  right  to  take  a  nonsuit  at  any 
time  before  the  jury  retires,  there  being  no  counter-claim; 
nor  under  the  one  hundred  and  forty-eighth  section  of  the 
practice  act  is  he  bound  to  tender  costs  before  the  nonsuit. 
The  provision  as  to  costs  is  simply  that,  by  the  nonsuit, 
plaintiff  becomes  subject  to  costs.  13  Cal.  637. 

SEC.  6.  The  plaintiff  has  not  the  absolute  right  to  take 
a  nonsuit  after  the  case  has  been  finally  submitted  and  the 
jury  has  retired  ;  but  such  right  does  exist  at  any  time  be 
fore  such  final  submission  and  retirement.  18  Cal.  76. 

SEC.  7.  A  plaintiff  in  a  justice's  court  may  withdraw  and 
be  nonsuited  before  the  jury  give  in  their  verdict.  5  Johns. 
346. 

SEC.  8.  When  the  plaintiff  closes  his  evidence,  if  the 
court  is  of  opinion  that  it  would  not  sustain  a  verdict  in 


606  JUSTICES'  TBEATISE. 

favor  of  plaintiff  upon  the  testimony,  a  nonsuit  should  be 
granted.     23  Cal  593. 

Motion  for,  Should  State  Grounds. 

SEC.  9.  Where  a  motion  is  made  for  a  nonsuit,  without 
stating  the  grounds  upon  which  it  is  made,  it  is  not  error 
to  overrule  the  motion.  10  Cal.  267. 


CHAPTER     LXX 

NUISANCES. 


WHAT  is  A  NUISANCE  . .  1-8 


JUKISDICTION  OF  ACTIONS  CoN- 
CEBNING  NUISANCE  . . 


What  is  a  Nuisance. 

SECTION  1.  Nuisance  Defined  and  Actions  for. — Anything 
which  is  injurious  to  health,  or  indecent  or  offensive  to  the 
senses  or  an  obstruction  to  the  free  use  of  property,  so  as 
to  interfere  with  the  comfortable  enjoyment  of  life  or  prop 
erty,  is  a  nuisance  and  the  subject  of  an  action.  Such  ac 
tion  may  be  brought  by  any  person  whose  property  is  inju 
riously  affected  or  whose  personal  enjoyment  is  lessened  by 
the  nuisance;  and  by  the  judgment  the  nuisance  may  be 
enjoined  or  abated,  as  well  as  damages  recovered*  Pr.  Act, 
249. 

SEC.  2.  What  is  Nuisance. — The  fact  whether  a  structure 
was  a  public  nuisance  is  a  question,  not  for  the  court,  but 
for  the  jury  to  decide.  Gunter  vs.  Geary,  1  Cal.  466.  It  is 
a  public  nuisance  to  erect  a  house  in  a  highway.  1  Cal. 
466.  A  house  on  fire  or  those  in  its  immediate  vicinity 
which  serve  to  communicate  the  flames,  is  a  nuisance  which 
it  is  lawful  to  abate ;  and  the  private  rights  of  the  indi 
vidual  yield  to  considerations  of  general  convenience  and 
the  interests  of  society.  Surocco  vs.  Geary,  3  Cal.  73.  The 
constitutional  provision  which  requires  payment  for  private 
property  taken  for  pubj.t  use  does  not  apply  to  the  destruc 
tion  of  a  house  to  check  a  conflagration;  nor  can  he  who 


NUISANCES.  607 

abates  this  nuisance  be  made  personally  liable  for  trespass, 
unless  the  act  is  done  without  actual  or  apparent  necessity. 
3  Col.  73.  The  erection  of  a  steam  engine  and  machinery 
and  a  grist  mill,  in  the  cellar  under  an  auction  store :  Held, 
not  to  be  such  an  injury  as  to  require  a  restraining  power 
of  the  court;  at  least,  not  until  the  question  of  nuisance 
should  be  determined  by  a  jury,  and  even  then  the  remedy 
at  common  law  is  adequate.  Middleton  vs.  Franklin,  3  Cal. 
241.  All  that  part  of  a  bay  or  river  below  low  water  or  low 
tide  is  a  public  highway,  common  to  all  citizens,  and  if  any 
person  appropriates  it  to  himself,  exclusively,  the  presump 
tion  is  that  it  is  a  detriment  to  the  public.  Gunter  vs.  Geary, 
1  Cal.  462.  Where  plaintiff's  mining  claim  was  overflowed 
by  means  of  a  dam  erected  by  the  defendants,  the  court  or 
dered  a  reduction  of  the  dam  so  as  to  prevent  the  overflow, 
or  if  necessary  its  entire  abatement.  Ramsey  vs.  Chandler, 
3  Cal.  241.  A  ditch  to  carry  off  water  rightfully  flowing  to 
a  mining  claim  is  as  much  a  nuisance  as  a  dam  to  flood 
it.  Parke  vs.  Killiam,  8  Cal.  77.  A  person  may  construct 
or  continue  what  would  otherwise  be  an  actionable  nui 
sance,  provided  that  at  the  commencement  of  it  no  person 
was  in  a  condition  to  be  injured  by  it  or,  in  other  words, 
mere  priority  as  between  owners  of  the  soil  gave  a  superior 
right.  Tenny  vs.  Miners'  Ditch  Co.,  7  Cal.  339.  The  diver 
sion  of  a  water-course  is  a  private  nuisance.  Tuolumne 
Water  Co.  vs.  Chapman,  8  .Cal.  397. 

SEC.  3.  The  statute  defining  what  are  nuisances  and  pre 
scribing  a  remedy  by  action,  does  not  take  away  any  com 
mon-law  remedy  in  the  abatement  of  nuisances  which  the 
statute  does  not  embrace.  5  Cal.  122. 

SEC.  4.  The  rules  of  the  common  law  were  so  far  adopt 
ed  in  this  state  as  to  supply  any  defect  which  might  exist  in 
the  statute  laws  by  furnishing  additional  remedies  for  the 
correction  of  wrongs.  5  Cal.  122. 

SEC.  5.  It  matters  but  little  whether  a  nuisance  com 
plained  of  is  called  private  or  public  at  the  common  law; 
if  either,  it  could  be  abated  by  the  party  aggrieved,  if  per 
formed  without  a  breach  of  the  peace.  5  Cal.  122. 

SEC.  6.  Whatsoever  unlawfully  annoys  or  does  damage 
to  another  is  a  nuisance,  and  such  nuisance  maybe  abated; 


608 


JUSTICES'  TREATISE. 


that  is,  taken  away  or  removed  by  the  party  aggrieved 
thereby  so  as  to  commit  no  riot  in  the  doing.     5  Col.  122. 

SEC.  7.  If  a  person  upon  his  own  soil  erect  a  thing  that 
is  a  nuisance  to  another,  as  by  the  stopping  of  a  rivulet,  and 
thus  diminish  the  water  used  by  his  cattle,  the  party  in 
jured  may  enter  upon  the  soil  of  the  other  and  abate  the 
nuisance.  5  Cal.  122. 

SEC.  8.  The  defendants  purchased  from  miners  upon 
' '  Lawson's  Ravine  "  certain  mining  claims  situated  upon  the 
ravine  which  had  been  held  and  worked  for  several  years. 
A  large  surplus  of  water  from  the  debouching  of  foreign 
ditches  passed  though  the  ravine,  which  was  used  by  the 
miners  upon  the  ravine  in  the  washing  of  .the  gold-bearing 
earth  and  the  removal  of  tailings  from  their  claims.  Sub 
sequently  to  the  location  of  mining  claims  upon  the  ravine, 
a  "portion  of  the  plaintiffs  erected  a  dam  for  the  purpose 
of  turning  the  water  into  a  mill-race,  and  conducting  the 
water  to  a  mill  occupied  by  them.  The  defendant  com 
plained  of  the  erection  and  retention  of  the  dam  as  injuri 
ous  to  the  free  use  of  his  mining  property  above  the  dam, 
by  flooding  his  ground  with  water  and  preventing  an  outlet 
to  the  tailings  from  his  claims.  Notice  was  given  to  the 
plaintiffs  to  remove  or  open  their  dam,  which  they  refused 
to  do,  when  the  defendant  in  a  peaceable  manner  proceeded 
to  remove  the  dam  himself  and  abate  the  same  as  a  nuis 
ance,  and  an  action  was  brought  against  him  for  damages 
on  account  of  the  removal:  Held,  that  the  plaintiffs  were 
not  entitled  to  damages.  5  Cal.  123. 


Jurisdiction. 


SEC.  9.  The  county  courts  have  original  jurisdiction  of 
actions  to  prevent  or  abate  a  nuisance.  People  vs.  Moore, 
29  Cal.  427. 


OFFICERS.  609 


CHAPTER    LXXI. 

OFFICERS. 

SECTION  1.  The  term  "officer,"  in  its  common  accepta 
tion,  is  sufficiently  comprehensive  to  include  all  persons  in 
any  public  station  or  employment  conferred  by  government. 
Officers  are  public  or  private,  and  it  is  said  every  man  is  a 
public  officer  who  has  any  duty  concerning  the  public,  and 
he  is  not  the  less  a  public  officer  where  his  authority  is  con 
fined  to  narrow  limits,  because  it  is  the  duty  of  his  office 
and  the  nature  *of  that  duty  which  makes  him  a  public  offi 
cer,  and  not  the  extent  of  his  authority.  8  Cal.  41,  42. 

SEC.  2.  The  acts  of  a  de  facto  officer  are  good.  6  Cal. 
215. 

SEC.  3.  The  acts  of  an  officer  de  facto  are  valid  as  be 
tween  third  persons.  17  Cal.  626. 

SEC.  4.  The  acts  of  an  officer  de  facto,  whether  judicial 
or  ministerial,  are  valid  so  far  as  the  rights  of  the  public 
and  third  persons  are  concerned,  and  neither  the  title  of 
such  officer  nor  the  validity  of  his  act  as  such,  can  be  indi 
rectly  called  in  question  in  a  proceeding  to  which  he  is  not 
a  party.  The  legal  presumption  is  always  in  favor  of  his 
authority.  3  Cal.  452,  453. 

SEC.  5.  The  tenure  of  an  office  does  not  depend  upon 
the  will  of  the  executive  but  of  the  incumbent.  .  A  civil 
officer  has  a  right  to  resign  his  office  at  pleasure,  and  it  is 
not  in  the  power  of  the  executive  to  compel  him  to  remain 
in  office.  6  Cal.  28. 

SEC.  6.  Strictly  speaking,  there  can  be  no  vacancy  in 
the  office  of  sheriff,  by  reason  of  the  death,  removal  or 
resignation,  of  the  incumbent,  for  upon  the  happening  of 
such  an  event  the  coroner,  by-  operation  .pf  law,  becomes 
sheriff,  and  there  is  no  interregnum  or  hiatus.  6  Cal.  93. 

SEC.  7.  The  power  of  the  board  of  pilot  commissioners 
is  quasi  judicial,  and  they  are  not  civilly  answerable  for 
their  acts  as  such.  They  are  public  officers  to  whom  the 
law  has  intrusted  certain  duties,  the  performance  of  which 
requires  the  exercise  of  judgment.  They  are  unlike  a  min- 
77 


610  JUSTICES'  TREATISE. 

isterial  officer  whose  duties  are  well  defined  and  who  must 
fail  to  execute  them  properly  at  his  own  peril.  Whenever, 
from  the  necessity  of  the  case,  the  law  is  obliged  to  trust  to 
the  sound  judgment  and  discretion  of  an  officer,  public 
policy  demands  that  he  should  be  protected  from  any  con 
sequences  of  an  erroneous  judgment.  6  Cat.  95. 


CHAPTER   LXXII. 
SET-OFF  OR  COUNTER-CLAIM. 

SECS.  .  SECS. 

JUDGMENT  MAY  BE  SET  OFF  ....  15-17 
IMPROVEMENTS  AGAINST  EENTS  .  18 
OMISSION  TO  PLEAD 19-20 


STATUTES  CONCERNING 2-6 

EFFECT  OF 7 

WHEN  IT  CAN  AND  CANNOT  BE 

PLEADED 8-14 

"What  is. 

SECTION  1.  When  parties  dealing  together  have  claims 
against  each  other,  one  may  deduct  the  amount  which  is 
due  to  him  from  the  claim  which  is  made  against  him,  and 
this  is  called  a  set-off.  This  practice  is  authorized  by  the 
following  statutes : 

Statutes  Concerning. 

SEC.  2.  The  answer  of  the  defendant  shall  contain: 
1st.  If  the  complaint  be  verified,  a  specific  denial  to  each 
allegation  of  the  complaint  controverted  by  the  defendant, 
or  a  denial  thereof  according  to  his  information  and  be 
lief;  if  the  complaint  be  not  verified,  then  a  general  de 
nial  to  each  of  said  allegations;  but  a  general  denial  shall 
only  put  in  issue  material  and  express  allegations  of  the 
complaint. 

2d.  A  statement  of  matter  in  avoidance,  a  counter-claim 
constituting  a  defense,  or  the  subject-matter  of  cross-com 
plaint,  which  may  entitle  a  defendant  to  relief  against  the 
plaintiff  alone  or  against  the  plaintiff  and  a  co-defendaut. 
Pr.  Ad,  46. 

SEC.  3.  The  counter-claim  mentioned  in  the  last  section 
shall  be  one  existing  in  favor  of  the  defendant  or  plaintiff, 


SET-OFF  OR  COUNTER-CLAIM.  611 

and  against  a  plaintiff  or  defendant  between  whom  a  sev 
eral  judgment  might  be  had  in  the  action,  and  arising  out 
of  one  of  the  following  causes  of  action : 

1st.  A  cause  of  action  arising  out  of  the  transaction  set 
forth  in  the  complaint  or  answer,  as  the  foundation  of  the 
plaintiff's  claim,  or  defendant's  defense,  or  connected  with 
the  subject  of  the  action. 

2d.  In  an  action  arising  upon  contract,  any  other  cause 
of  action  arising  also  upon  contract,  and  existing  at  the 
commencement  of  the  action.  Pr.  Act,  47. 

SEC.  4.  When  cross-demands  have  existed  between  per 
sons  under  such  circumstances  that  if  one  had  brought  an 
action  against  the  other  a  counter-claim  could  have  been 
set  up,  neither  shall  be  deprived  of  the  benefit  thereof 
by  the  assignment  or  death  of  the  other,  but  the  two  de 
mands  shall  be  deemed  compensated,  so  far  as  they  equal 
each  other.  Pr.  Act,  48. 

SEC.  5.  Answer,  Contents  of,  in  Justice's  Court. — The 
answer  may  contain  a  denial  of  any  of  the  material  facts 
stated  in  the  complaint  which  the  defendant  believes  to  be 
untrue,  and  also  a  statement,  in  a  plain  and  direct  manner, 
of  any  other  facts  constituting  a  defense  or  a  counter-claim, 
upon  which  an  action  may  be  brought  by  the  defendant 
against  the  plaintiff  in  a  justice's  court.  Pr.  Act,  574. 

SEC.  6.  Manner  of  Pleading  a  Written  Instrument. — When 
the  cause  of  action  or  counter-claim  arises  upon  an  account 
or  instrument  for  the  payment  of  money  only,  it  shall  be 
sufficient  for  the  party  to  deliver  a  copy  of  the  account  or 
instrument  to  the  court,  and  to  state  that  there  is  due  to 
him  thereupon,  from  the  adverse  party,  a  specified  sum, 
which  he  claims  to  recover  or  set  off.  The  court  may,  at 
the  time  of  the  pleading,  require  that  the  original  account 
or  instrument  be  exhibited  to  the  inspection  of  the  adverse 
party,  and  a  copy  to  be  furnished;  or  if  it  be  not  so  exhib 
ited  and  a  copy  furnished,  may  prohibit  its  being  after 
wards  given  in  evidence.  Pr.  Act,  576. 

Effect  of. 

SEC.  7.  Every  man  of  good  business  sense  would  much 
prefer  setting  off  his  claim  against  that  of  another  rather 


612  JUSTICES'  TREATISE. 

than  first  pay  the  money  out  of  his  own  pocket  and  then  risk 
getting  it  again  from  the  pocket  of  his  adversary.  Parties 
were  often  ruined  by  the  practical  operation  of  the  old 
rule,  which  seems  to  have  been  founded  more  in  the  con 
venience  of  courts  than  upon  the  true  principles  of  justice. 
Like  the  practice  of  a  justice  of  the  peace,  who  never 
heard  any  testimony  except  for  the  plaintiff,  upon  the 
alleged  ground  that  the  contrary  practice  of  hearing  the 
testimony  on  both  sides  tended  to  produce  doubt  and  con 
fusion  in  his  own  mind,  the  former  rule  may  have  been 
more  simple,  but  still  it  was  all  on  one  side,  and  practically 
defeated  the  very  ends  contemplated  by  the  law  itself. 
Our  practice  act  has  placed  parties  upon  an  equal  footing 
with  respect  to  each  other.  It  may  possibly,  in  some  in 
stances,  increase  the  difficulties  in  particular  cases,  but  its 
general  operation  cannot  fail  to  be  more  beneficial  and  just 
to  the  parties.  Under  the  operation  of  the  statutory  rule, 
neither  party  is  compelled  to  advance  money,  in  the  first 
instance,  and  then  sue  to  recover  it  back  again  in  the 
second.  8  Col.  405. 

"Where  it  Can  and  Cannot  be  Pleaded. 

SEC.  8.  The  law  of  set-offs  is  a  matter  of  statutory  regu 
lation,  and  the  correctness  of  the  decision  depends  upon 
the  construction  to  be  given  to  the  statute.  The  forty- 
seventh  section  of  the  practice  act  provides  that  the  claim 
to  be  set  off  shall  >be  *a  demand  "existing  in  favor  of  the 
defendant  or  plaintiff,  and  against  a  plaintiff  or  defendant, 
between  whom  a  several  judgment  might  be  had  in  the 
action."  In  other  words,  that  the  claim  shall  be.  such  that 
the  party  pleading  it  might  obtain  a  several  judgment 
against  his  adversary  upon  it;  and  this  undoubtedly  ex 
cludes  a  joint  debt  as  a  set-off  against  a  separate  debt.  In 
this  case  the  defendants  seek  to  set  off  a  debt  of  the  plaint 
iff  and  his  brother  against  a  debt  due  to  the  plaintiff  alone, 
and  it  is  clear  that  the  statute  gives  them  no  right  to  do  so. 
20  Col.  281. 

.    SEC.  9.     An  unliquidated  claim  for  damages  is  not  the 
subject  of  offset,  either  equitable  or  legal.     19  Cal.  331. 
f?  SEC.  10.     "When  a  creditor  having  a  debt  due  him,  se- 


SET-OFF  OB  COUNTEK-CLAIM.  613 

cured  by  mortgage,  assigns  the  debt  and  mortgage,  a  judg 
ment  in  favor  of  a  third  person  against  the  creditor,  pur 
chased  by  the  debtor  after  the  assignment,  but  before 
notice  of  it  to  him,  constitutes  an  offset  pro  tanto  to  the 
debt  in  an  action  upon  it  by  the  assignee.  20  Cal.  509. 

SEC.  11.  Accounts  or  demands,  as  in  cases  of  set-off  in 
other  courts,  must  have  existed  at  the  commencement  of 
the  suit.  So  a  breach  of  a  promise  to  discontinue  a  suit 
cannot  be  set  off  in  that  suit.  8  Johns.  470. 

SEC.  12.  In  an  action  in  a  justice's  court  upon  a  money 
demand,  the  defendant  cannot  set  up  in  his  answer,  as  a 
counter-claim  or  set-off,  a  demand  amounting,  exclusive  of 
interest,  to  more  than  two  [three]  hundred  dollars.  A 
justice  of  the  peace  has  no  jurisdiction  to  pass  upon  a 
counter-claim  or  set-off,  unless  it  be  for  such  a  sum  as 
the  defendant  might  have  maintained  an  action  on  against 
the  plaintiff  in  a  justice's  court.  23  Cal.  61. 

SEC.  13.  A  party  sued  before  a  justice  cannot  file,  as  an 
offset,  an  account  exceeding  the  justice's  jurisdiction,  al 
though  by  giving  credit  for  the  plaintiff's  demand,  he  re 
duces  his  own  claim  within  the  limit  of  his  jurisdiction. 
20  Miss.  (5  Bennett)  497. 

SEC.  14.  If  the  defendant  cannot  substantiate  the  whole 
of  the  set-off  offered  by  him,  the  justice  ought  not  wholly 
to  reject  it ;  but  if  any  part  is  proved,  it  ought  to  be  al 
lowed.  10  Johns.  110. 

• 

Judgment  may  be  Set  off. 

SEC.  15.  Where  the  parties  to  two  judgments  are  not 
the  same,  a  court  of  common-law  jurisdiction  cannot  set 
off  one  against  the  other.  23  Cal.  596. 

SEC."  16.  The  power  of  a  court  to  set  off  one  judgment 
against  another,  upon  motion,  is  well  established,  and  this 
power  depends  mainly  upon  the  general  jurisdiction  of  the 
court  over  its  suitors  and  process.  Barbour  on  Set-off,  32. 
And  a  purchaser  and  assignee  of  a  judgment,  even  for  a  val 
uable  consideration  and  without  notice,  takes  subject  to  a 
right  of  set-off  existing  at  the  time  of  the  assignment,  for 
an  assignee  takes  subject  to  all  equitable  as  well  as  legal 
defenses  which  can  be  urged  against  the  assignor.  Graves 


614  JUSTICES'  TREATISE. 

vs.  Woodbury,  4  Hill,  559;  Cooper  vs.  Bigeloiv,  1  Cow.  206. 
And  the  fifth  section  of  the  practice  act  recognizes  the 
same  principle.  22  Gal.  432,  433. 

SEC.  17.  Set-off  of  one  Judgment  against  Another. — A  per 
son  may  receive  the  money  due  on  a  judgment  rendered  in 
favor  of  himself  and  several  others,  co-plaintiffs,  but  he 
cannot  without  authority  from  his  co-plaintiff  set  off  a  judg 
ment  due  to  him  and  them  jointly  against  another  judgment 
held  by  the  defendant  in  such  joint  judgment  against  him 
self  alone.  35  Cal  195. 

SEC.  18.  Set-off  of  Improvements  against  Rents. — In  eject 
ment,  the  fact  that  the  defendant  has  made  permanent  and 
valuable  improvements,  in  good  faith  and  under  color  of 
title,  is  no  defense  to  the  action ;  but  if  such  fact  is  set  up 
in  the  answer  in  such  language  as  to  contain  the  essential 
facts  to  justify  a  set-off  of  the  value  of  improvements  against 
rents,  it  will  be  treated  as  a  good  answer  for  that  purpose, 
although  no  offer  is  made  of  such  set-off.  Anderson  vs. 
Ifok,  36  Cal.  625. 

SEC.  19.  A  party  does  not  lose  his  right  to  bring  an  ac 
tion  for  a  demand  which  he  might  have  pleaded  as  a  set- 
off  in  a  former  action,  but  neglected  to  do.  23  Cal.  597. 

SEC.  20.  An  omission  to  assert  a  cross-claim  when  a  de 
mand  is  presented  for  payment,  does  not  involve  a  waiver 
of  the  counter-claim,  nor  is  a  failure  to  discharge  an  un 
faithful  servant  before  his  term  of  service  has  expired  a 
release  of  damages  arising  from  his  neglect.  26  Cal.  294. 


PARTIES   TO   ACTIONS. 


615 


CHAPTER     LXXIII. 
PAKTIES  TO  ACTIONS. 


SECS. 

BY  WHAT  NAMES  PARTIES  TO  BE 

STYLED 1 

THE  STATE 2 

COUNTIES 3-6 

IN  WHOSE  NAMES  ACTIONS  TO  BE 

PROSECUTED 7-17 

EXECUTORS,  ADMINISTRATORS 

AND  TRUSTEES  . . ,  .   18-20 


SECS. 

HUSBAND  AND  WIFE 21-30 

INFANTS 31-34 

PERSONS  IN  INTEREST 35-46 

PERSONS  SEVERALLY  LIABLE 

UPON  SAME  INSTRUMENT  . .  47-49 
DEATH  OR  DISABILITY  OF  PARTY 

OR  TRANSFER  OF  INTEREST  .  50-52 


By  what  Names  Parties  tc  be  Styled. 

SECTION  1.  In  a  civil  action,  the  party  complaining  shall 
be  known  as  the  plaintiff  and  the  adverse  party  as  the  de 
fendant.  Gen.  Laws,  4941,  5464. 

The  State. 

SEC.  2.  Liability  to  be  sued  has  no  necessary  connec 
tion  with  ability  to  sue.  The  state  can  sue  in  all  cases,  but 
she  is  only  subject  to  be  sued  in  the  instances  specially 
provided  by  law  (18  Col.  59)  ;  and  in  the  absence  of  any 
statute  permitting  her  to  be  sued1:,  any  judgment  against  her 
would  be  erroneous.  6  Cal.  258. 

Counties. 

SEC.  3.  The  people  of  a  county  are  not  a  corporation, 
nor  can  they  sue  or  be  sued.  15  Cal.  33. 

SEC.  4.  Boards  of  supervisors  cannot  be  sued  in  their  offi 
cial  character,  in  ordinary  common-law  actions,  for  claims 
against  the  public,  county  or  village,  they  represent,  without 
express  statutory  provision.  18  Cal.  49. 

SEC.  5.  But  counties  are  quasi  corporations,  and  the 
power  to  sue  and  to  be  sued  is  given  in  general  terms  by  an 
act  prescribing  the  manner  of  commencing  and  maintaining 
suits  by  or  against  counties,  passed  May  llth,  1854.  6  Cal. 
255. 

SEC.  6.  The  statute  gives  to  counties  the  right  of  pros 
ecuting  and  defending  all  actions  in  the  same  manner  and 
with  the  same  effect  as  individuals.  8  Cal.  305. 


616  JUSTICES'  TEEATISE. 


In  whose  Names  Actions  to  be  Prosecuted. 

SEC.  7.  Every  action  shall  be  prosecuted  in  the  name  of 
the  real  party  in  interest,  except  as  otherwise  provided  in 
the  act  to  regulate  proceedings  in  civil  cases  in  the  courts 
of  justice  of  this  state.  Gen.  Laius,  4943,  5464. 

SEC.  8.  Formerly,  where  a  bond  was  given  to  an  officer, 
state  or  corporation,  suit  had  to  be  brought  in  the  name  of 
the  party  holding  the  legal  title  for  the  benefit  of  the  per 
sons  interested,  but  our  statute  has  introduced  a  new  rule, 
and  by  the  provisions  of  the  practice  act  the  suit  must  be 
prosecuted  in  the  name  of  the  real  party  in  interest.  There 
fore,  the  plaintiff  being  the  real  party  in  interest  has  a  right 
to  sue  upon  a  bond,  though  made  payable  to  the  people  of 
the  state.  7  Cal.  554. 

SEC.  9.  Whatever  the  rule  may  be  under  the  old  system 
tinder  our  system  the  right  of  action  is  in  the  party  sustain 
ing  the  injury;  for,  qn  a  recovery,  the  other  party,  if  enti 
tled  to  receive  the  money  at  all  and  if  judgment  were  had 
in  the  name  of  both,  would  hold  it  by  right  of  and  as  a 
trustee  for  the  other;  and  our  practice  act  for  convenience 
has  given  the  right  to  sue  to  the  party  beneficially  entitled 
to  the  fruits  of  the  action.  10  Cal.  347. 

SEC.  10.  Where  there  are  several  obligees  in  an  under 
taking  promising  to  pay  "said  parties  enjoined,"  etc.,  suit 
may  be  brought  in  the  name  of  one  alone,  if  he  be  benefi 
cially  entitled  to  the  fruits  of  the  recovery  (13  Cal.  591), 
or  if  the  property  on  which  the  injunction  operated  was  his 
sole  property,  and  the  injury  his  alone,  the  complaint  aver 
ring  these  facts.  15  Cal.  9. 

SEC.  11.  But  a  factor  may  sue  in  his  own  name- where 
the  goods  have  come  into  his  actual  possession,  and  where 
by  reason  of  such  possession  he  has  a  special  property  in 
them,  and  is  entitled  to  maintain  an  action  for  injuries  to 
them,  and  wrhen  sold  for  the  price.  1  Cal.  83.  The  con 
signee  named  in  a  bill  of  lading  is  to  be  deemed  prima  facie 
the  owner  of  the  goods  mentioned  therein,  and  upon  pay 
ment  of  freight  may  maintain  an  action  against  any  person 
who  assumes  a  control  over  them  in  violation  of  his  right  of 
property.  1  Cal.  417. 


PARTIES  TO  ACTIONS.  617 

SEC.  12.  An  agent  may  sue  in  his  own  name  at  law  on  a 
note  payable  to  him,  although  it  describes  him  as  agent  of 
another.  1  Cal.  78;  5  Col.  516. 

SEC.  13.  An  assignment  of  an  account  by  indorsement  of 
the  word  ' '  assigned"  signed  by  the  owner  of  the  account,  is 
sufficient  to  show  the  intention  of  the  parties,  and  the  as 
signee  may  bring  an  action  in  his  own  name.  It  is  not  error 
to  permit  the  plaintiff,  the  assignee,  to  amend  on  the  trial 
the  assignment  by  inserting  the  words:  "For  value  re 
ceived,  I  hereby  assign  the  within  account,"  instead  of  the 
word  ' '  assigned" — the  additional  words  being  mere  surplus 
age.  The  right  of  an  assignment  of  an  account  existed  be 
fore  the  passage  of  the  practice  act  of  1854,  and  the  right  of 
the  assignee  to  sue  in  his  own  name  is  given  by  the  first 
section  of  the  amended  practice  act  of  1855.  6  Cal.  247, 
248. 

SEC..  14.  To  entitle  the  assignee  of  a  judgment  to  bring 
suit  in  his  own  name  upon  the  appeal  bond  filed  in  the 
cause  he  must  have  an  assignment  of  the  bond.  The  assign 
ment  of  the  judgment,  while  it  may  give  him  equitable 
'rights  to  avail  himself  of  the  security  afforded  by  the  bond, 
cannot  confer  the  right  of  bringing  a  common-law  action 
upon  it.  6  Cal.  88.  . 

SEC.  15.  An  assignment  by  a  creditor  of  a  portion  of  a 
debt  does  not  make  the  assignee  a  joint  owner  of  the  whole 
debt,  and  he  is  not  a  necessary  party  to  a  suit  for  its  recov 
ery.  21  Cal.  152. 

SEC.  16.  In  the  case  of  an  assignment  of  a  thing  in  ac 
tion,  the  action  by  the  assignee  shall  be  without  prejudice 
to  any  set-off  O4r  other  defense  existing  at  the  time  of  or 
before  notice  of  the  assignment ;  but  this  section  shall  not 
apply  to  a  negotiable  promissory  note  or  bill  of  exchange 
transferred  in  good  faith  and  upon  good  consideration  be 
fore  due.  Gen.  Laws,  4944,  5464. 

SEC.  17.  If  several  persons  associate  themselves  togeth 
er  and  form  a  corporation,  they  cannot  be  sued  as  individ 
uals  for  its  debts.  It  is  recognized  in  law  only  by  its  cor 
porate  name,  and  must  sue  and  be  sued  by  its  corporate 
name.  26  Cal.  633. 
78 


618  JUSTICES'  TREATISE. 

Executors,  Administrators  and  Trustees 

SEC.  18.  An  executor  or  administrator,  or  trustee  of  an 
express  trust,  or  a  person  expressly  authorized  by  statute, 
may  sue  without  joining  with  him  the  person  or  persons 
for  whose  benefit  the  action  is  prosecuted.  A  trustee  of 
an  express  trust,  within  the  meaning  of  this  section,  shall 
be  construed  to  include  a  person  with  whom  or  in  whose 
name  a  contract  is  made  for  the  benefit  of  another.  Gen. 
Laws,  4945,  5464. 

SEC.  19.  In  this  state,  all  the  property,  both  real  and 
personal,  belonging  to  the  estate  of  a  deceased  person,  goes 
into  the  possession  of  the  administrator,  who  is  therefore  a 
necessary  party  to  all  suits  affecting  it.  8  Cal.  580. 

SEC.  20.  In  cases  of  joint  and  several  contracts  or  obli 
gations,  an  administrator  cannot  be  joined  with  the  sur 
vivor,  for  one  is  charged  de  bonis  testaroris  and  the  other  de 
bonis  propriis.  5  Cal.  176;  6  Cal.  643. 

Husband  and  Wife. 

SEC.  21.  When  a  married  woman  is  a  party,  her 'hus 
band  shall  be  joined  with  her,  except: 

1st.  When  the  action,  concerns  her  separate  property  or 
her  right  or  claim  to  the  homestead  property,  she  may  sue 
alone. 

2d.  WThen  the  action  is  between  herself  and  her  husband, 
she  may  sue  or  be  sued  alone.  Gen.  Laws,  5464;  Stat. 
1867-8,  550. 

SEC.  22.  We  have  but  one  form  of  action  and  but  one 
set  of-  rules  to  govern  us  in  determining%  by  and  against 
whom  the  action  is  to  be  prosecuted ;  and  in  all  cases 
where  the  statute  is  silent  the  common  law  has  been  adopt 
ed  as  the  rule  of  decision.  "The  husband  and  wife,"  says 
Chitty,  "must  join  if  the  action  be  brought  for  the  personal 
suffering  of  or  injury  to  the  wife;"  and  this  is  the  settled 
rule  of  the  common  law  upon  that  subject.  The  right  of 
recovery  does  not  extend,  however,  to  any  matter  for  which 
the  husband  should  sue  alone.  18  Cal.  539. 

SEC.  23.  The  husband  and  wife  cannot  recover,  jointly 
in  an  action  ex  contracts  for  a  breach  of  a  contract  made 


PAETIES  TO  ACTIONS.  619 

with  the  defendant  to  convey  the  wife,  but  it  is  well  settled 
that  for  an  injury  done  to  the  person  of  a  married  woman 
she  must  join  in  the  action,  and  it  is  immaterial  that  the 
injury  is  charged  to  have  been  committed  in  violation  of  a 
contract.  If  the  act  producing  the  injury  be  in  itself  tor- 
tious,  it  may  be  so  treated  for  all  remedial  purposes ;  and 
it  would  be  absurd  to  hold,  that  because  the  wrong  done 
amounts  to  the  breach  of  a  qontract,  it  is  therefore  purged 
of  its  tortious  character.  18  Col.  533. 

SEC.  24.  The  husband  of  a  married  woman  is  properly 
joined  with  her  as  a  party  defendant,  in  an  action  upon  a 
partnership  obligation  contracted  by  the  wife  and  third 
persons  as  partners,  previous  to  the  marriage  and  while  she 
was  a  femme-sole.  22  Col.  457. 

SEC.  25.  In  an  action  brought  by  a  married  woman,  con 
cerning  property  belonging  to  her  as  a  sole  trader,  under 
the  act  of  1852  the  husband  need  not  be  joined.  7  Col. 
455. 

SEC.  26.  So  in  an  action  against  a  married  woman,  alleged 
to  be*  a  sole  trader  under  that  act,  on  a  contract  executed 
by  her  as  such,  it  is  improper  to  join  her  husband  with  her 
as  defendant;  and  a  complaint  so  drawn  is  demurrable. 
The  effect  of  the  statute  is  to  make  such  married  woman  a 
femme-sole  as  to  the  particular  business  or  profession  in 
which  she  is  engaged.  6  Cal.  498. 

SEC.  27.  The  wife  may  sue  alone  when  the  action  is  be 
tween  herself  and  her  husband.  It  makes  no  difference 
whether  there  are  other  parties  defendant  to  the  action,  as 
the  statute  does  not  use  the  word  "only."  The  test  of  the 
wife's  capacity  to  sue,  is  simply  to  ascertain  if  the  suit  is 
between  her  and  her  husband,  and  this  being  found  in  the 
affirmative,  the  necessity  of  introducing  other  parties  can 
not  affect  her  right.  The  object  of  the  statute  is  to  take 
away  the  necessity  of  the  old  form  of  suing  by  prochein  ami, 
and  being  a  remedial  statute  it  must  be  beneficially  con 
strued.  3  Cal  321. 

SEC.  28.  A  femme-covert  cannot  contract  under  the  laws 
of  this  state  so  as  to  render  her  liable  in  a  suit  at  law.  4 
Cal  285. 

SEC.  29.     If  a  husband  and  wife  be  sued  together,  the 


620  JUSTICES'  TREATISE. 

wife  may  defend  for  her  own  right.  Gen.  Laws,  4947,  5464. 
SEC.  30.  This  can  be  done  as  well  when  sued  jointly 
with  her  husband  as  if  the  trial  were  separate ;  her  defense, 
if  a  special  one,  could  come  in,  in  either  case.  5  Gal.  388. 
To  enable  her  to  do  so,  she  must  possess,  as  defendant,  all 
the  rights  of  a  femme-sole,  and  be  able  to  make  as  binding 
admissions,  in  writing,  in  the  action,  as  other  parties.  9 

Gal.  321. 

Infants, 

SEC.  31.  When  an  infant  is  a  party  he  shall  appear  by 
guardian,  who  may  be  appointed  by  the  court  in  which  the 
action  is  prosecuted,  or  by  a  judge  thereof  or  a  county 
judge.  Gen.  Laws,  4948,  5464. 

SEC.  32.  A  general  guardian  of  an  infant  has  authority 
to  institute  an  action  on  behalf  of  his  ward.  20  Cal.  660. 

SEC.  33.     The  guardian  shall  be  appointed  as  follows  : 

1st.  When  the  infant  is  plaintiff,  upon  the  application  of 
the  infant,  if  he  be  of  the  age  of  fourteen  years;  or,  if  under 
that  age,  upon  the  application  of  a  relative  or  friend  of  the 
infant. 

2d.  When  the  infant  is  defendant,  upon  the  application 
of  the  infant,  if  he  be  of  the  age  of  fourteen  years,  and 
apply  within  ten  days  after  the  service  of  the  summons  ; 
if  he  be  under  the  age  of  fourteen,  or  neglect  so  to  apply, 
then  upon  the  application  of  any  other  party  to  the  action, 
or  to  a  relative  or  friend  of  the  infant.  Gen.  Laws,  4949, 
5464. 

SEC.  34.  The  provisions  of  sections  nine  and  ten  of  the 
practice  act,  relative  to  the  appointment  of  guardians  ad 
litem  where  infants  -are  parties,  only  apply  where  there  is 
no  general  guardian,  or  where  he  does  not  act.  Where  the 
interests  of  the  minor  require  it,  the  court  in  which  an 
action  is  pending  will  appoint  a  guardian  ad  litem,  even 
though  the  minor  may  have  a  general  guardian.  In  a 
case  where  the  infant  defendant  had  a  general  guardian, 
the  supreme  court  say:  "As  Lies  was  general  guardian 
there  was  no  occasion  for  his  special  appointment  as  guard 
ian  ad  litem  in  the  action.  As  general  guardian  he  was 
authorized — indeed  it  was  his  duty — to  appear  for  his  ward. 
The  statute  declares  that  the  guardian  '  shall  appear  for 


PARTIES  TO  ACTIONS.  621 

and  represent  his  ward  in  all  legal  suits  and  proceedings, 
unless  where  another  person  is  appointed  for  that  purpose 
as  guardian  or  next  friend.'  Gen.  Laws,  3377.  The  provi 
sions  of  the  civil  practice  act  relating  to  the  appointment 
of  guardians  ad  litem,  where  infants  are  parties  (Sees.  9, 
10),  only  apply  where  there  is  no  general  guardian  or 
where  he  does  not  act.  Cases  frequently  arise  where  the 
interests  of  the  minor  are  best  served  by  the  special  ap 
pointment  of  a  guardian  ad  litem,  even  though  he  may 
Have  a  general  guardian.  In  such  cases  the  court  would 
make  a  special  appointment,  and  the  act  concerning  guard 
ians,  to  which  we  have  referred,  expressly  reserves  the 
power  of  the  court  in  this  respect.  Gen.  Laws,  3372.  But 
'where  the  court  does  not  specially  appoint  for  the  particu 
lar  action,  the  general  guardian  may  appear,  and  it  is  his 
duty  to  appear  for  his  ward."  19  Cal.  629,  632. 

Persons  in  Interest 

SEC.  35.  All  persons  having  an  interest  in  the  subject 
of  the  action,  and  in  obtaining  the  relief  demanded,  may 
be  joined  as  plaintiffs,  except  when  otherwise  provided  in 
this  act.  Gen.  Laws,  4951,  5464. 

SEC.  36.  A  father,  or  in  case  of  his  death  or  desertion 
of  his  family  the  mother,  may  maintain  an  action  for  the 
injury  or  death  of  a  child;  and  a  guardian  for  the  injury 
or  death  of  his  ward.  Gen.  Laivs,  4950,  5464. 

SEC.  37.  All  the  parties  in  interest  should  be  joined  in  an 
action  of  trover.  But  there  are  only  two  ways  of  taking  ad 
vantage  of  the  non-joinder  when  the  defect  does  not  appear 
upon  the  face  of  the  complaint,  and  that  is  either  by  answer 
or  apportionment  of  the  damages  at  the  trial. "  8  Cal.  516. 

SEC.  38.  Where  the  obligors  in  a  sheriff's  bond  bind 
themselves  jointly  and  severally  in  specific  sums  designated, 
they  may  all  be  joined  in  the  same  action,  but  separate 
judgments  are  required.  9  Cal.  286. 

SEC.  39.  One  of  four  sureties  having  paid  the  common 
debt — two  of  the  sureties  being  insolvent — may  sue  the 
remaining  surety  for  his  half  of  the  debt,  without  join 
ing  the  insolvents  as  parties.  19  Cal.  125. 

SEC.  40.     "Where  a  plaintiff  is  tenant  in  common  with 


622  JUSTICES'  TEEATISE. 

another,  the  defendant?  may  raise  the  objection  in  a  justice's 
court,  on  a  motion  for  a  nonsuit  upon  the  trial,  where  the 
defect  of  the  parties  appears  on  the  face  of  the  complaint. 
19  Barb.  (N.  Y.)  664. 

SEC.  41.  Any  person  may  be  made  a  defendant,  who  has 
or  claims  an  interest  in  the  controversy  adverse  to  the 
plaintiff,  or  who  is  a  necessary  party  to  a  complete  deter 
mination  or  settlement  of  the  question  involved  therein. 
Gen.  Laws,  4952,  5464. 

SEC.  42.     This  section  refers  to  cases  in  equity  where 
persons  whose  rights  may  be  affected  are  to  be  brought  ii 
as  parties  in  order  that  a  complete  decree  may  be  rei 
dered.*    9  Col.  270. 

SEC.  43.  In  an  action  of  ejectment  to  recover  an  unc 
vided  interest  in  a  mining  claim,  it  is  not  necessary  to  mal 
parties  defendants  in  such  action,  who  are  in  possession 
such  claim,  holding  other  undivided  interests,  and  whc 
claim  no  right  to  the  interest  sued  for.  It  is  only  neces 
sary,  in  such  a  case,  for  the  plaintiff  to  sue  the  party  who 
interferes  with  his  rights.  11  Cal.  366. 

SEC.  44.  Of  the  parties  to  the  action,  those  who  are 
united  in  interest  shall  be  joined  as  plaintiffs  or  defendants; 
but  if  the  consent  of  any  one  who  should  have  been  joined 
as  plaintiff  cannot  be  obtained,  he  may  be  made  a  defend 
ant,  the  reason  thereof  being  stated  in  the  complaint ;  and 
when  the  question  is  one  of  a  common  or  general  interest, 
of  many  persons,  or  when  the  parties  are  numerous,  and  it 
is  impracticable  to  bring  them  all  before  the  court,  one  or 
more  may  sue  or  defend  for  the  benefit  of  all.  Gen.  Laws, 
4953,  5464. 

SEC.  45.  This  section  was  intended  to  apply  to  suits  in 
equity  and  not  to  actions  at  law.  7  Cal.  333. 

SEC.  46.  Where  a  part  owner  brings  an  action  in  form, 
ex  delicto,  and  the  objection  is  not  made  by  plea  in  abate 
ment,  the  other  part  owner  may  afterwards  sue  alone.  8 
Cal.  516,  517. 

*  Burnett,  J.,'  was  not  prepared  to  say  whether  it  referred  alone  to  cases  in 
equity. 


PARTIES  TO  ACTIONS.  623 


Persons  severally  Liable  upon  same  Instrument. 

SEC.  47.  Persons  severally  liable  upon  the  same  obliga 
tion  or  instrument,  including  the  parties  to  bills  of  exchange 
and  promissory  notes,  and  sureties  on  the  same  or  separate 
instruments,  may  all  or  any  of  them  be  included  in  the 
same  action,  at  the  option  of  the  plaintiff.  Gen.  Laws, 
4954,  5464. 

SEC.  48.  This  section  is  in  derogation  of  the  old  rule, 
that  one  or  all,  and  not  an  intermediate  number,  should  be 
sued.  6  Cal  183. 

SEC.  49.  It  is  no  misjoinder  of  parties  defendant  for  the 
plaintiff  to  sue  one,  or  any  number  more  than  one,  of  all 
the  persons  severally  liable  upon  the  same  obligation  or 
instrument.  25  Cal.  521. 

Death  or  Disability  of  Party  or  Transfer  of  Interest. 

SEC.  50.  An  action  shall  not  abate  by  the  death  or  other 
disability  of  a  party;  or  by  the  transfer  of  any  interest  there 
in  if  the  cause  of  action  survive  or  continue.  In  case  of  the 
death  or  other  disability  of  a  party,  the  court,  on  motion, 
may  allow  the  action  to  be  continued  by  or  against  his  rep 
resentative  or  successor  in  interest.  In  case  of  any  other 
transfer  of  interest,  the  action  may  be  continued  in  the  name 
of  the  original  party;  or,  the  court  may  allow  the  person  to 
whom  the  transfer  is  made  to  be  substituted  in  the  action. 
Gen.  Laws,  4955,  5464. 

SEC.  51.  The  court  may  determine  any  controversy  be 
tween  parties  before  it,  when  it  can  be  done  without  preju 
dice  to  the  rights  of  others  or  by  saving  their  rights;  but 
when  a  complete  determination  of  the  controversy  cannot 
be  had  without  the  presence  of  other  parties,  the  court 
shall  order  them  to  be  brought  in.  Gen.  Laws,  4956,  5464. 

SEC.  52.  Parties  in  justices'  courts  may  prosecute  or 
defend  in  person  or  by  attorney;  and  any  person,  on  the 
request  of  a  party,  may  act  as  his  attorney,  except  that  the 
constable  by  whom  the  summons  or  jury  process  was  served 
shall  not  appear  or  act  on  the  trial  in  behalf  of  either  party. 
Gen.  Laws,  5465. 


624  JUSTICES'  TREATISE. 

CHAPTER     LXXIV. 
PARENT  AND  CHILD. 


OF  PARENTS 


INFANCY — ITS  TEEMINATION  ....       1-2 
CAPACITIES  AND  INCAPACITIES  OF      3-5 

Infancy — Its   Termination. 

SECTION  1.  Males  shall  be  deemed  of  full  and  legal  age 
when  they  shall  be  twenty-one  years  old,  and  females  shall 
be  deemed  of  full  and  legal  age  when  they  shall  be  eighteen 
years  old  or  at  any  age  under  eighteen  when,  with  the  con 
sent  of  the  parent,  guardian  or  other  person,  under  whose 
care  or  government  they  may  be,  they  shall  have  been  law 
fully  married.  Gen.  Laws,  4433. 

SEC.  2.  Males  and  females  of  legal  age,  as  fixed  by  this 
act,  shall  be  competent  to  make  contracts,  convey  real  es 
tate  and  do  all  other  acts  and  things,  that  persons  of  full  age 
may  legally  do.  Gen.  Laws,  4434.  • 

Capacities  and  Incapacities  of. 

SEC.  3.  An  infant  may  libel,  slander,  assault,  convert 
and  disseize.  He  can  contract  only  for  necessaries,  but  he 
can  commit  torts  as  efficiently  as  an  adult,  and  against  inju 
ries  of  that  character  his  non-age  will  afford  him  no  protec 
tion.  25  Gal.  151. 

SEC.  4.  No  one  can  take  advantage'of  the  fact  of  infancy, 
except  the  infant  himself  or  his  heirs  or  personal  represent 
atives.  24  Gal.  207. 

SEC.  5.     The  main  question  in  this  case  is,  whether  a 
mortgage  executed  in  1856  by  a  femme-covert  under  the 
age  of  eighteen,  can  be  enforced  against  the  plea  of  infancy, 
the  mortgage  having  been  made  upon  the  separate  estate 
of  the  femme.     The  act  of  May  10th,  1854  (Woods  Digest, 
541),  fixes  the  legal  age  of  males  at  twenty-one  and  of  f 
males  at  eighteen,  and  provides  that  at  those  periods,  re 
spectively,  they  shall  be  competent  to  contract  and  to  coi 
vey  real  estate.     The  act  of  April  2d,  1858  (Statutes,  I 
provides  that  married  women,  when  under  the  age  of  eigh- 


PAEENT  AND  CHILD.  625 

teen  and  married  with  the  consent  of  their  parent  or  guard 
ian,  shall  be  deemed  of  full  and  lawful  age.  It  is  true  that 
the  statute  of  conveyances  (Wood's  Digest,  Sec.  2,  100)  em 
powers  husband  and  wife,  by  their  joint  deed,  to  convey 
real  estate  to  the  wife;  but  the  act  continues:  "In  like  man 
ner  as  she  might  do  if  unmarried."  Taking  all  these  acts 
together,  and  it  seems  evident  that  the  disability  of  infancy, 
as  defined  by  the  first  act  cited,  attaches  as  well  to  femmes- 
covert  under  age  as  to  femmes-sole,  subject  only  to  the  act  of 
1858,  which  has,  however,  no  application  to  mortgages  ex 
ecuted  in  1856.  It  is  urged  in  avoidance  of  this  plea,  that 
the  deed  of  an  infant  is  not  void  but  only  voidable,  and 
that  it  will  be  held  valid  unless  disaffirmed  on  the  infant's 
arrival  at  legal  age.  But  if  this  doctrine  be  generally  true 
it  would  not  apply  to  such  a  case  as  this — the  case,  namely, 
of  a  married  woman  whose  disability  of  coverture  might 
prevent,  if  not  the  possibility  of  her  own  volition,  of  an  act 
of  disaffirmance,  yet  its  effectual  exercise;  and  the  principle 
would  nqt,  moreover,  apply  to  the  case  of  a  note  and  mort 
gage,  in  respect  to  which  there  would  seem  to  be  no  act 
of  disaffirmance  necessary  until  demand  of  payment  were 
made  or  enforcement  were  sought.  It  seems  that  refusal 
to  acknowledge  the  asserted  obligation  was  made  as  soon 
as  payment  was  insisted  upon.  18  Gal.  159,  160. 

Of  Parents. 

SEC.  6.  A  parent  may,  for  some  purposes  and  under 
some  circumstances,  emancipate  his  child.  The  intention 
to  emancipate  is  a  question  of  fact,  and  in  the  absence  of 
direct  proof  may  be  inferred  from  circumstances.  8  Gal. 
123. 

SEC.  7.  A  father  may  emancipate  his  minor  child,  and 
when  emancipated  the  child  is  freed  from  parental  control, 
and  is  in  all  respects  his  own  man.  Evidence  that  a  minor 
was  in  the  habit  of  doing  business  on  his  own  account  and 
in  his  own  name,  and  of  becoming  responsible  for  his  own 
supplies,  is  admissible  for  the  purpose  of  proving  his  eman 
cipation.  The  doctine  of  estoppel  has  no  application  to 
infants.  25  Gal.  147. 

SEC.  8.  The  parent  has  a  right  to  the  services  of  his 
79 


626  JUSTICES'  TREATISE. 

child;  and  the  resulting  right  to  change  the  residence  of 
the  child  is  equally  clear.  8  Col.  123. 

SEC.  9.  Parents  are  under  obligations  to  support  their 
children,  and  are  entitled  to  their  earnings.  8  Gal.  123. 

SEC.  10.  It  is  the  duty  of  the  parent  to  supply  his  child 
with  necessaries,  and  he  is  liable  to  others  who  furnish 
them  under  certain  circumstances.  The  parent  cannot 
divest  himself  of  this  duty  by  giving  the  child  his  own  time. 
If  the  child  is  taken  sick  and  the  parent  has  means,  he  is 
bound  to  take  care  of  him  even  after  he  has  given  him  his 
time.  The  parent  cannot  absolve  himself  from  that  respon 
sibility.  And  if  that  responsibility  continues,  the  power 
over  the  child  must  also  continue.  The  responsibility  and 
the  power  must  stand  or  fall  together.  The  duty  of  the 
parent  to  feed,  clothe  and  educate,  the  child  must  be  com 
mensurate  with  the  power  to  control  and  govern.  Such  a 
responsible  and  delicate  relation  cannot  be  destroyed  by 
the  voluntary  act  of  the  father  without  consideration.  A 
parent  cannot  cease  to  be  the  natural  guardian  of  his  infant 
child  under  such  circumstances.  And  being  the  guardian 
of  his  child,  no  contract  as  between  them  can  be  enforced. 
It  is  the  duty  of  the  parent  to  support  the  child;  and  for 
doing  this,  it  is  very  doubtful  whether  he  could  maintain  a 
suit  against  the  child,  even  upon  an  express  promise  made 
after  becoming  of  age.  And  when  a  father  promises  his 
infant  child  a  certain  reward  for  doing  that  which  he  was 
already  bound  to  perform,  the  agreement  has  no  considera 
tion  whereon  to  rest.  It  is  one  of  those  understandings 
that  must  be  left  to  the  parties  to  settle  themselves.  It  is 
of  too  doubtful  and  delicate  a  character  to  be  the  subject  of 
investigation  in  a  court  of  justice.  8  Cal.  124,  125. 

SEC.  11.  Even  in  cases  where  the  child  is  of  age  and  re 
mains  in  the  service  of  the  parent  as  one  of  the  family, 
courts  have  manifested  great  jealousy  of  claims  for  compen 
sation.  Where  the  alleged  services  were  performed  after 
the  son  was  of  full  age,  the  court  held  that  he  was  not  enti 
tled  to  recover,  upon  the  ground  that  no  mutual  contract 
was  proven.  Courts  listen  reluctantly  to  claims  for  wages 
by  a  son  against  the  estate  of  a  deceased  parent.  Such 
claims  must  be  accompanied  with  clear  proof  of  an  agree- 


PAYMENT.  627 

ment,  not  depending  on  idle  and  loose  declarations,  but  on 
unequivocal  acts  of  the  intestate.  As  for  example :  A  settle 
ment  of  an  account  or  money  paid  by  the  father  to  the  son 
as  wages,  distinctly  thereby  manifesting  that  the  relation 
which  subsisted  was  not  the  ordinary  one  of  parent  and 
child,  but  master  and  servant.  8  Col.  125,  126. 

SEC.  12.  Where  the  father  is  absent  for  some  years, 
leaving  his  infant  son  to  manage  for  himself,  and  contribut 
ing  to  his  support,  and  not  interfering  in  any  way  with  his 
son's  engagements,  the  son  can  sue  and  recover  in  his  own 
name  for  work  and  labor  done  while  a  minor.  Where  an 
infant  performs  the  labor  with  the  consent  of  his  father 
and  for  another  person,  and  upon  a  promise  to  pay  the 
infant,  the  latter  can  maintain  an  action  in  his  own  name* 
8  Cal.  123. 

SEC.  13.  Parents  may  transfer  this  right  to  the  earnings 
of  their  children,  or  authorize  those  who  employ  their 
children  to  pay  them  their  own  earnings,  and  the  payment 
will  be  a  discharge  against  the  parents.  The  principle 
upon  which  the  infant  is  allowed  to  collect  his  wages  is 
that  of  agency.  The  infant  can  be  his  father's  agent,  and 
whether  he  is  so  or  not  is  a  question  of  fact,  like  any 
other  question  of  agency  which  may  be  proven  by  either 
direct  or  circumstantial  testimony.  8  Cal.  123. 


CHAPTER   LXXV. 
PAYMENT. 


UNDEE  PBOTEST. 


WHAT  is 1-7 

BY  MISTAKE  OF  LAW  OK  FACT  . .     8-13 


"What  is. 

SECTION  1.  By  agreement  between  creditor  and  debtor 
a  less  sum  than  the  whole  amount  may  be  paid  and  received 
in  full  payment  and  discharge  of  any  indebtedness,  if  such 
agreement  be  clearly  manifested  by  a  receipt  or  instrument, 
in  writing,  signed  by  such  creditor.  Laivs  1867-8,  31. 


628  JUSTICES'  TREATISE. 

SEC.  2.  An  agreement  to  pay  a  fixed  sum  in  grain,  at 
the  market  price,  on  a  day  specified,  if  not  fulfilled  by  the 
delivery  of  the  grain  at  the  time  fixed  becomes  a  debt  paya 
ble  in  money.  Where  such  an  agreement  exists  no  demand 
of  the  grain  is  necessary,  but  a  failure  to  deliver  makes  the 
sum  fixed  a  money  debt.  23  Cal.  65,  66. 

SEC.  3.  If  the  debtor  at  the  time  of,  or  previous  to,  pay 
ment,  neglects  to  designate  to  which  of  several  debts  he 
applies  his  payment,  his  right  to  control  the  application  is 
gone,  and  the  creditor  may  exercise  it  at  any  time  before 
suit.  The  institution  of  suit  evidences  the  creditor's  ap 
plication  of  the  payment.  If  the  creditor  has  once  made 
the  appropriation,  whether  by  verbal  declaration  or  ren 
dering  an  account,  or  by  conduct  inducing  a  reliance  on  a 
particular  appropriation,  or  bringing  suit  in  a  way  which 
declares  the  application,  he  cannot  afterwards  change  it,  but 
subject  to  this  he  may  make  the  application  at  any  time. 
14  Cal.  446,  449. 

SEC.  4.  Where  the  defendant,  being  indebted  to  plaint 
iff,  a  banking  firm,  made  a  payment  on  account  in  the  bank 
to  one  of  plaintiff's  clerks,  and  on  a  subsequent  day  agreed 
to  lend  to  the  clerk  the  amount  thus  paid,  who  took  the 
money  and  used  it,  and  the  amount  thus  paid  was  never 
credited  to  the  defendant  on  the  books  of  the  plaintiff: 
Held,  that  the  amount  paid  by  defendant  in  the  usual  way 
of  business  was  a  legal  payment;  the  possession  having 
been  changed  and  the  defendant  having  lost  all  control 
over  it.  If  the  defendant  is  ultimately  liable  for  the  amount 
thus  advanced  to  the  clerk,  it  must  be  in  an  action  for  thus 
advancing  it,  and  not  in  an  action  on  the  original  indebted 
ness.  6  Cal.  283,  284. 

SEC.  5.  When  the  plaintiff  employs  an  agent  to  collect  a 
note  due  from  defendant,  and  the  defendant  employs  the 
same  agent  to  collect  other  notes  due  him  and  apply  the 
same  on  plaintiff's  note,  and  the  agent  fails  after  collecting 
money  on  defendant's  account,  the  loss  occasioned  by  the 
failure  of  the  agent  must  fall  on  the  defendant,  unless  the 
appropriation  was  actually  made.  The  law  does  not  make 
the  application.  The  law  does  not  apply  money  until  it  has 
passed  from  the  debtor  ;  so  long  as  it  remains  in  the  hands 


PAYMENTS.  629 

of  the  debtor  or  his  agent  it  may  be  diverted  for  any  other 
purpose,  and  there  can  be  no  legal  appropriation  thereof. 
7  Cal.  83. 

SEC.  6.  Gold  dust  is  not  cash.  A  party  may  receive  it 
at  such  price  as  he  choose  in  lieu  of  cash — the  same  as  he 
might  accept  any  other  article  of  merchandise  instead  of 
cash.  1  Cal.  49. 

SEC.  7.     Gold  dust  is  constantly  fluctuating  in  its  market 
value ;  it  is  an  article   of  traffic,  like  merchandise,  and  a 
payment  in  it  is  a  payment  for  just  so  much  as  the  parties 
agree  and  for  no  more.     1  Cal.  49. 
< 

By  Mistake  of  Law  or  Fact. 

SEC.  8.  In  the  absence  of  fraud  or  mistake,  a  party  can 
not  escape  the  consequences  of  an  arrangement  voluntarily 
made  by  him  because  of  a  misunderstanding  of  its  legal 
effect.  22  Cal.  344. 

SEC.  9.  If  money  be  paid  in  mistake  of  law  and  not  of 
fact,  the  court  cannot  relieve.  2  Cal.  587. 

SEC.  10.  Money  paid  under  a  mistake  or  ignorance  of 
law  of  our  own  country,  but  with  a  knowledge  of  the  facts 
or  the  means  of  such  knowledge,  cannot  be  recovered  back. 
16  Cal.  565. 

SEC.  11.  Plaintiff  is  not  entitled  to  relief  on  the  ground 
of  mistake  which  was  of  law  and  not  of  fact.  16  Cal.  145. 

SEC.  12.  Every  man  is  to  be  charged,  at  his  peril,  with  a 
knowledge  of  the  law.  There  is  no  other  principle  which 
is  safe  and  practicable  in  the  common  intercourse  of  man 
kind.  20  Cal.  642. 

SEC.  13.  The  principle  that  a  liability  cannot  be  dis 
charged  by  a  less  sum  than  what  is  due,  applies  to  pay 
ments  in  money,  and  has  never  been  extended  to  a  case 
where  a  certain  quantity  of  goods  which  were  of  less  value 
than  the  debt  were  delivered  and  accepted  in  satisfaction. 
2  Cal.  497. 

Under  Protest. 

SEC.  14.  The  object  of  a  protest  is  to  take  from  the  pay 
ment  its  voluntary  character,  and  thus  conserve  to  the  party 
a  right  of  action  to  recover  back  the  money.  It  is  available 
only  in  cases  of  paj^ment  under  duress  or  coercion,  or  when 


630  JUSTICES'  TREATISE. 

* 

undue  advantage  is  taken  of  the  party's  situation.     It  has 
no  application  to  voluntary  payments.     9  Cal.  417. 

SEC.  15.  Where  money  is  paid  upon  compulsion,  the 
law  raises  an  obligation  to  refund,  and  the  form  of  the 
action  is  for  money  had  and  received  to  the  plaintiff's  use. 
9  Cal.  418. 

SEC.  16.  The  compulsion  or  coercion  which  is  sufficient 
in  law  to  render  a  payment  involuntary,  must  come  from 
the  party  to  whom  or  by  whose  direction  the  payment  is 
made,  and  arise  from  the  exercise  or  threatened  exercise  of 
some  power  possessed  or  supposed  to  be  possessed  by  him 
over  the  person  or  property  of  the  party  making  the  pay 
ment.  18  Cal.  404,  405. 


CHAPTER   LXXVI. 
PEBSONAL  LIABILITY  OF  OFFICEES. 

Or  JUSTICES 1-3  I  OF  CONSTABLES 


Of  Justices. 

SECTION  1.  If  a  justice  of  the  peace  in  the  discharge  of 
any  of  his  ministerial  or  judicial  duties  act  corruptly,  to 
the  injury  of  the  party,  his  conduct  is  a  breach  of  the 
condition  of  his  official  bond  (3  Slack/.  72),  as  if  he  cor 
ruptly  discharge  an  offender  by  taking  insufficient  securities 
for  his  reappearance  (15  Wend.  277),  or  corruptly  refuse  to 
take  security  required  to  be  given  on  the  prosecution  of  an 
appeal.  His  liability  to  an  action  in  the  latter  case  is 
because  his  duty  in  such  proceeding  is  ministerial  and  not 
judicial.  8  Wend.  462. 

SEC.  2.  A  magistrate  is  not  liable  for  what  he  does  in  a 
judicial  capacity,  unless  he  acts  corruptly  or  oppressively. 
2  Bay,  1,  385 ;  38  Maine  (3  Heath),  530 ;  2  N.  &  M.  148 ;  3 
Cusli.  543.  If  a  public  officer,  in  performing  an  act  judicial 
in  its  nature,  commit  an  error  in  fact  or  law  in  the  exercise 
of  his  authority,  he  is  not  answerable  in  damages,  and  his 
act  will  be  valid  until  reversed  or  set  aside.  21  Barb. 
(N.  T.)  207.  The  rule  of  common  law,  except  so  far  as  it 


PERSONAL  LIABILITY  OF  OFFICERS.  631 

has  been  changed  by  statute,  exempts  a  judge  from  a  civil 
suit  or  indictment  for  any  act  done  by  him  when  sitting  as 
a  judge.  8  B.  Mon.  214. 

SEC.  3.  There  is,  however,  a  marked  difference  in  the 
liability  of  a  justice  of  the  peace  when  he  acts  ministerially. 
The  following  are  some  of  the  acts  which  are  purely  minis 
terial,  viz :  the  taking  of  security  required  to  be  given  on 
the  prosecution  of  an  appeal  (8  Wend.  462) ;  the  refusing  an 
appeal  and  issuing  an  execution  where  the  doing  so  is  in 
violation  of  good  faith  and  an  abuse  of  discretion  (38 
Maine,  3  Heath,  530) ;  the  entering  a  recognizance  so  as  to 
make  it  ineffectual  (4  Hane,  331);  in  making  a  return  upon 
an  appeal  so  that  a  party  is  injured  by  reason  of  an  error 
in  such  return  (1  Denio,  589) ;  in  making  a  false  return  to 
an  appeal  (1  Denio,  589);  in  making  a  false  return  to  a 
certiorari  (14  Johns.  195) ;  in  entering  satisfaction  of  a  judg 
ment  on  his  docket,  no  matter  for  what  consideration,  un 
less  the  creditor  is  a  party  to  it.  2  Blackf.  135.  If  a  justice 
of  the  peace  thus  carelessly  and  improperly  act,  he  will  be 
liable;  and  in  every  instance,  whether  it  be  in  his  judicial 
or  ministerial  character,  if  it  can  be  shown  that  his  conduct 
is  the  result  of  malice,  undue  partiality  or  any  other  corrupt 
influence,  he  will  be  liable  for  such  injury  as  may  result 
therefrom. 

Of  Constables. 

SEC.  4.  After  execution  returned  by  a  constable,  judg 
ment  was  recovered  against  him  for  neglect,  the  jilstice  not 
having  entered  the  return  in  his  docket  and  the  constable 
being  unable  to  prove  it  cdiunde :  Held,  that  the  neglect  of 
the  justice  did  not  render  him  liable  to  the  constable.  6 
Hill,  487. 

SEC.  5.  If  an  attachment  issue  without  the  proof  required 
by  statute  and  be  executed,  the  justice  and  the  plaintiff  and 
the  constable  are  trespassers.  3  Cow.  206. 

SEC.  6.  An  execution  issued  by  a  court  of  competent 
jurisdiction  is  a  legal  justification  to  an  officer  for  taking 
and  selling  the  judgment-debtor's  property  thereon,  and  he 
is  not  bound  to  investigate  the  genuineness  or  sufficiency  of 
a  receipt  shown  to  him  by  the  debtor  in  settlement  of  the 
judgment.  10  Cush.  (Mass.)  46. 


632 


JUSTICES'  TREATISE. 


SEC.  7.  Where  a  justice  notifies  a  constable  that  an 
appeal  has  been  entered  and  execution  in  his  hands  super 
seded,  any  subsequent  sale  under  the  execution  is  void  and 
the  constable  is  a  trespasser.  The  regularity  of  the  appeal 
is  the  justice's  business  and  not  the  constable's.  27  Penn. 
State,  199. 

SEC.  8.  A  ministerial  officer  may  not  be  sued  as  a  tres 
passer  for  simply  obeying  the  command  of  a  writ,  regular  on 
the  face  of  it,  and  therefore  trespass  cannot  be  maintained 
against  an  officer  who  sells  a  horse  by  virtue  of  an  execu 
tion,  though  the  proceedings  in  the  suit  were  irregular.  23 
Penn.  State  (11  Harris),  189. 


CHAPTER    LXXVII. 
PLEADING. 


DEFINITION  AND  OBJECT 

BULES 

CONSTRUCTION  OF  PLEADINGS  . . 

FOBM  OF  ACTION  AND  PLEADING 

THE  COMPLAINT— WHAT  IT  is . . 

COMPLAINT  BY  ADMINISTRATORS 
ET  AL 

COMPLAINT  AGAINST  ADMINIS 
TRATORS  ET  AL 

COMPLAINT  IN  ACTIONS  OF  AC 
COUNT,  ETC 

ANSWER 

PLEAS  OF  NEW  MATTER— PAY 
MENT — STATUTE  OF  LIMITA 
TIONS  

SEPARATE  DEFENSE 

DEMURRERS 

STRIKING  OUT  PLEADINGS 

AMENDMENT  OF 


SECS. 

1-  2 

3 

.4 

5 

6 


ALLEGATIONS  AND  PROOFS  MUST 
CORRESPOND 

VERIFICATION  OF  PLEADINGS  . . . 

PLEADINGS  INJUSTICES'  COURTS, 
GENERALLY 

CONSTRUCTION  OF  PLEADINGS  . . . 

KULES  OF  PLEADINGS 

WHAT  ARE  THE  PLEADINGS  IN 
JUSTICES'  COURTS 

COMPLAINT 

ANSWER 

DEMURRER 

WHEN  PLEADINGS  ARE  TO  BE  IN 
WRITING  AND  VERIFIED  . . . 

VERIFICATION  OF  PLEADINGS.  . . 

WHAT  JUSTICES  SHALL  DO  WITH 
THE  PLEADINGS 

AMENDMENTS  OF  PLEADINGS  .... 

EVIDENCE  UNDER  THE  PLEAD 
INGS  


16 

17 

18-23 

24-25 

26 

27 

28-46 
47-54 
55-60 

61-62 
63-65 

66 
67-71 

72-76 


Definition  and  Object 

SECTION  1.  The  pleadings  are  the  formal  allegations  by 
the  parties,  of  their  respective  claims  and  defenses,  for  the 
judgment  of  the  court.  Gen.  Laws,  4976. 


PLEADING:  633 

SEC.  2.  The  object  is  to  advise  the  apprise  party  of  the 
distinct  subject-matter  of  averment  or  defense  intended  to 
be  relied  on,  and  to  put  the  other  party  upon  notice  of 
what  he  has  to  meet.  12  Col.  534;  3  Gal.  230. 

It  is  impracticable  in  a  work  like  the  present  to  give  a 
satisfactory  treatise  on  pleading,  except  so  far  as  may  be 
immediately  useful  in  practice  in  justices'  courts.  The  fol 
lowing  references  will,  it  is  'hoped,  contribute  to  the  con 
venience  of  the  profession  in  their  investigation  of  subjects 
to  which  they  refer,  in  whatever  court  they  may  arise.  As 
introductory  to  the  subject  the  following  rules  laid  down  by 
Justice  Field,  concurred  in  by  Justice  Baldwin,  will  be 
appropriate  : 

Rules. 

SEC.  3.  Rule  1st.  Facts  only  must  be  Stated. — This  means 
the  physical  facts,  cognizable  by  the  senses,  or  capable  of 
being  shown  to  a  jury  without  the  aid  of  legal  inferences; 
the  facts,  as  contradistinguished  from  tJie  law,  from  argument, 
from  hypothesis  and  from  the  evidence  of  the  facts.  A  legal 
inference  or  conclusion  from  the  facts  should  not  be  stated ; 
that  is  not  the  province  of  the  pleadings,  under  our  system, 
which  is  to  develop  the  facts.  To  apply  the  law  to  the  facts 
— that  is,  to  draw  thence  legal  inferences  or  conclusions — 
is  the  province  of  the  court.  Argument  in  a  pleading  is 
equally  appropriate,  for  that  is  to  be  made  orally  before 
the  court  when  the  facts  are  developed.  Hypothetical 
statements  are  improper,  for  the  court  is  to  deal  not  with 
hypothetical  cases,  but  with  the  facts  of  the  case  in  hand. 
The  defendant's  pretenses  are  equally  improper,  as  they  are 
not  the  facts  of  the  plaintiff's  case. 

The  facts  must  be  carefully  distinguished  from  the,  evidence 
of  the  facts.  The  latter  pertains  to  the  trial  and  has  no 
place  in  the  pleadings.  But  inasmuch  as  the  evidence  is  but 
a  series  of  facts,  it  has  sometimes  been  thought  difficult  to 
distinguish  between  the  greater  facts  which  ought  to  be  set 
forth  in  a  pleading  and  those  other  lesser  facts  which  go  to 
prove  the  former.  There  ought,  however,  to  be  no  embar 
rassment  on  the  part  of  any  lawyer  who  has  ever  framed  or 
who  understands  special  verdicts.  These  have  been  long 
80 


634  JUSTICES'  TREATISE. 

known;  and  the  rule  is  as  old  as  their  existence,  that  they 
must  contain  the  facts  found,  and  not  the  evidence  to  prove 
them. 

The  next  rule,  however,  will  give  us  a  satisfactory  test  by 
which  to  distinguish  the  facts  from  the  evidence.  15  Col. 
414,  415;  16  Gal.  243 ;  13  Cat.  641,  642;  10  Gal.  28;  22  Gal. 
229,  232,  566. 

Rule  2d.  Those  Facts,  and  those  only,  must  be  stated  ivhich 
constitute  the  Cause  of  Action,  the  Defense  or  the  Reply.— 
Therefore : 

1st.  Each  party  must  allege  every  fact  which  he  is  re 
quired  to  prove,  and  will  be  precluded  from  proving  any 
fact  that  is  not  alleged. 

For  example,  when  a  writing  is  by  the  statute  of  frauds 
made  necessary  to  the  validity  of  a  contract,  the  writing 
must  be  averred — that  being  one  of  the  facts  necessary  to 
constitute  a  cause  of  action. 

The  plaintiff,  on  his  part,  must  allege  all  that  he  will  have 
to  prove  to  maintain  his  action ;  the  defendant,  on  his  part, 
all  that  he  must  prove  to  defeat  the  plaintiff,  after  the  com 
plaint  is  admitted  or  proved. 

2d.  He  must  allege  nothing  affirmatively  which  he  is  not 
required  to  prove. 

This  is  sometimes  put  in  the  following  form,  that  is  to 
say,  that  those  facts,  and  those  only,  should  be  stated  which 
the  party  would  be  required  to  prove.  But  this  is  inaccu 
rate,  as  negative  allegations  are  frequently  necessary,  and 
they  are  not  to  be  proved;  as,  for  example,  in  an  action  on 
a  promissory  note,  the  plaintiff  must  allege  not  only  the 
making  of  the  note,  but  that  it  has  not  been  paid.  The 
rule,  however,  applies  to  all  affirmative  allegations,  and  thus 
applied  is  universal.  No  matter  what  averments  were  held 
to  be  necessary  in  the  former  scheme  of  pleading,  nothing 
of  an  affirmative  character  is  now  necessary  beyond  what 
the  party  must  prove.  For  instance,  it  is  enough  to  allege 
that  the  defendant  published  a  libel  of  the  plaintiff,  without 
adding  that  he  did  it  falsely  or  maliciously— the  falsehood 
being  presumed,  and  the  malice  being  inferred  from  the 
falsehood. 

It  must  be  recollected,  then — 


PLEADING.  635 

In  the  first  place,  that  every  fact  essential  to  the  claim  or 
defense  should  be  stated.  If  this  part  of  the  rule  be  vio 
lated  the  adverse  party  may  demur. 

In  the  second  place,  that  nothing  should  be  stated  which 
is  not  essential  to  the  claim  or  defense;  or,  in  other  words, 
that  none  but  issuable  facts  should  be  stated.  If  this  part 
of  the  rule  be  violated  the-  adverse  party  may  move  to  strike 
out  the  unessential  parts. 

AVhat  is  and  what  is  not  essential  an  uninstructed  person 
might  not  readily  discover,  but  a  lawyer  ought  not  to  be  in 
doubt.  An  unessential  or  what  is  the  same  thing,  an  imma 
terial  allegation,  is  one  which  can  be  stricken  from  the 
pleading  without  leaving  it  insufficient,  and  of  course  need 
not  be  proved  or  disproved. 

The  following  question  will  determine  in  every  case 
whether  an  allegation  be  material :  Can  it  be  made  the  sub 
ject  of  a  material  issue?  In  other  words,  if  it  be  denied, 
will  the  failure  to  prove  it  decide  the  case  in  whole  or  in 
part?  If  it  will  not,  then  the  fact  alleged  is  not  material; 
it  is  not  one  of  those  which  constitute  the  cause  of  action, 
defense  or  reply. 

To  illustrate  this :  Let  us  suppose  an  ultimate  fact,  upon 
the  establishment  of  which  the  claim  or  defense  depends, 
and  that  the  establishment  of  this  fact  depends  upon  the 
establishment  of  three  or  four  prior  facts,  which  being  estab 
lished  prove  this.  It  is  the  ultimate  fact,  and  not  the  prior 
or  probative  facts,  which  should  be  set  forth.  As  for  exam 
ple,  in  an  action  upon  the  covenants  of  a  deed;  the  execu 
tion  and  delivery  of  the  deed  are  ultimate  facts  upon  which 
the  claim  depends.  When  these  come  to  be  proved  it  may 
appear  perhaps  that  the  deed  was  delivered  first  in  escrow, 
till  the  performance  of  certain  conditions  by  the  grantee; 
that  these  were  afterwards  performed,  and  then  the  deliv 
ery  became  absolute.  These,  however,  are  circumstances 
which,  though  they  appear  in  proof  should  not  be  pleaded. 
Or,  take  the  case  of  an  action  for  land  where  the  question 
is  one  of  boundary.  The  point  in  issue  is  whether  the  de 
fendant  is  in  possession  of  the  plaintiff's  land — that  being 
affirmed  by  the  plaintiff  and  denied  by  the  defendant.  It 
would  be  out  of  place  for  either  party  to  insert  in  his  plead- 


636  JUSTICES'  TREATISE. 

ing  a  correspondence  respecting  the  dividing  fence  or  the 
acts  of  the  parties  toward  a  practical  location,  because  how 
ever  important  these  might  be  in  evidence  they  might  not 
determine  the  cause ;  since,  if  the  correspondence  or  the 
practical  location  were  disproved,  the  question  of  the  true 
boundary  according  to  the  deeds  would  still  remain. 

If  in  an  action  for  a  libel  the  defendant  justifies,  he  must 
allege  the  truth  of  the  charge,  not  the  defendant's  admis 
sions,  tending  to  prove  the  truth — since  the  admissions 
might  be  disproved  and  yet  the  charge  be  true. 

So  in  an  action  upon  a  mortgage,  if  the  defense  be  pay 
ment,  the  fact  of  payment  must  be  alleged,  not  the  evidence 
of  the  plaintiff's  admission  that  it  had  been  paid;  since 
there  may  have  been  no  admission  but  nevertheless  a  pay 
ment. 

It  results,  then,  from  what  has  been  stated,  under  the 
present  rule :  1st,  that  the  pleader  must  insert  in  his  plead 
ings  whatever  he  is  to  prove ;  2d,  that  he  must  insert  no 
affirmative  allegation  which  he  is  not  to  prove ;  3d,  that 
what  he  does  insert  must  be  decisive  of  some  part  of  the 
cause,  one  way  or  the  other.  15  Col.  415,  416;  23  Col.  465. 

Bule  3d.  All  Statements  must  be  Concisely  Made,  and  when 
once  Made  must  not  be  Repeated. — There  was  never  a  greater 
slander  upon  the  code  than  to  say  that  it  permits  long 
pleadings.  On  the  contrary,  it  enjoins  conciseness  every 
where  ;  and  if  in  any  pleading  that  was  ever  written  under 
its  rule  there  be  an  unnecessary  word,  it  was  put  there  in 
disregard  of  its  provisions.  Nor  is  it  possible  to  frame  or 
conceive  of  a  system  proceeding  upon  the  idea  of  disclosing 
the  facts  of  the  case,  which  could  require  greater  concise 
ness  than  is  here  required .  If  pleadings  are  not  to  set  forth 
the  real  claim  and  defense  they  are  useless  and  had  better 
be  dispensed  with.  A  summons  to  appear  before  the  court 
and  jury  on  a  particular  day  to  try  the  rights  of  the  parties 
on  a  particular  subject,  would  be  just  as  useful.  But  if  a 
pleading  is  to  be  a  statement  of  the  claim  or  defense,  can 
the  wit  of  man  contrive  to  make  it  briefer  than  a  concise 
statement  of  the  facts?  If  an  immaterial  statement  be  in 
serted  or  even  an  unnecessary  word,  the  courts  have  the 
power  to  strike  it  out. 


PLEADING.  637 

To  avoid  repetition  as  well  as  to  obtain  conciseness,  log 
ical  order  is  necessary.  There  are  persons  who  are  incapa 
ble  of  making  a  logical  statement  of  anything;  and  such 
persons  will  be  bad  pleaders  under  the  code.  But  a  man 
of  education,  as  every  lawyer  is  supposed  to  be,  ought  to 
have  no  difficulty  in  setting  forth  any  occurrence  in  its  log 
ical,  which  is  its  natural,  order.  And  if  he  does  this  and 
sets  forth  only  the  facts  on  which  his  case  hinges  and  uses 
no  more  words  than  are  necessary,  we  shall  have  brevity 
and  substance,  and  hear  no  more  of  long  pleadings,  unnec 
essary  recitals  or  immaterial  affirments.  15  Cal.  417 ;  14 
Gal  84,  457. 

Construction  of  Pleadings. 

SEC.  4.  All  pleadings  must  be  taken  most  strongly 
against  the  pleader.  3  Cal  230,  322;  5  Cal  51;  10  Cal 
322;  1  Cal  359. 

Form  of  Action  and  Pleading. 

SEC.  5.  There  shall  be  in  this  state  but  one  form  of  civil 
action  for  the  enforcement  and  protection  of  private  right 
and  the  redress  or  protection  of  private  wrongs.  Gen. 
Laivs,  4940.  Form  of.  2  Cal  468;  22  Cal  516;  17  Cal. 
497;  21  Cal  134.  Must  be  subscribed  by  the  party  or  his 
attorney.  8  Cal  572. 

The  Complaint— What  it  Is. 

SEC.  6.  The  complaint  is  a  statement  in  legal  form  by 
the  plaintiff  of  his  cause  of  action  against  the  defendant. 
What  the  practice  act  requires  to  be  stated  generally.  11 
Cal  168;  21  Cal  74.  Should  state  facts.  8  Cal  369;  22 
Cal  247;  21  Cal  349.  Charging  fraud.  15  Cat.  349;  8 
Cal  619.  Bequest  or  demand.  9  Cal  285. 

Effect  of  Verdict  or  Default  upon  Defects  in. — The  general 
rule  as  to  the  effect  of  a  verdict  upon  defects  in  pleading. 
9  Cal.  269;  10  Cal  555;  14  Cal.  210. 

Complaint  by  Administrators  et  al. 

SEC.  7.  Complaint  by  administrators.  24  Cal.  167.  By 
corporations.  6  Cal.  261.  By  executors.  16  Cal.  574,  579. 
By  ferrymen.  3  Cal.  237. 


638  JUSTICES'  TREATISE. 


Complaint  against  Administrators  et  al. 

SEC.  8.  Complaint  against  administrators  or  executors. 
6  Col.  393;  10  Col.  555.  Against  agents.  8  CaL  625;  7  Col. 
422.  Against  attorneys.  3  CaL  110.  Against  joint  wrong 
doers.  25  CaL  556.  Against  married  women.  22  CaL  522; 
17  CaL  119. 

Complaint  in  Actions  of  Account,  etc. 

SEC.  9.  Complaint  in  actions  of  account.  12  CaL  419, 
414,  422;  17  CaL  178;  26  CaL  69;  3  CaL  244.  In  actions  of 
detinue.  3  CaL  189.  In  actions  of  replevin.  16  CaL  578; 
10  CaL  17;  30  CaL  190;  23  CaL  349:  12  CaL  296;  1  CaL  160; 
32  CaL  585.  In  actions  of  trespass.  3  CaL  440;  14  CaL 
82.  In  actions  for  goods  sold  and  delivered.  18  CaL  570; 
32  CaL  172.  In  actions  for  money  had  and  received.  22  CaL 
516;  8  CaL  624;  6  CaL  29;  15  CaL  344;  22  Col.  457.  In  ac 
tions  for  money  loaned.  3  CaL  331.  In  actions  for  services. 
22  CaL  232.  In  actions  on  bonds.  3  CaL  272;  7  CaL  568. 
In  actions  on  judgments.  6  CaL  654;  12  CaL  181;  7  Weiid. 
435.  In  actions  on  notes  and  bills.  9  CaL  499;  4  CaL  277; 
8  CaL  324;  7  <7aZ.  166;  11  CM.  317;  25  CaL  291.  In  actions  on 
promises  to  pay.  4  CaL  296.  In  actions  on  undertakings 
to  release  attachments.  9  CaL  501;  6  CaL  651.  In  actions 
on  written  contracts.  Gen.  Laws,  5000;  6  CaL  258 ;  26  CaL 
294;  17  CaL  101;  21  CM.  122. 

Answer. 

SEC.  10.  An  answer  is  a  waiver  of  demurrer.  1  CaL  206, 
470,  481.  What  answer  must  contain.  18  CaL  464;  31. CaL 
185;  34  CaL  153;  33  CaL  208.  The  answer  of  the  defend 
ant  shall  contain  : 

1st.  If  the  complaint  be  verified,  a  specific  denial  to  each 
allegation  of  the  complaint  controverted  by  the  defendant, 
or  a  denial  thereof,  according  to  his  information  and  belief; 
if  the  complaint  be  not  verified,  then  a  general  denial  to 
each  of  said  allegations;  but  a  general  denial  shall  only  put 
in  issue  the  material  and  express  allegations  of  the  com 
plaint. 


PLEADING.  639 

2d.  A  statement  of  matter  in  avoidance,  a  counter-claim 
constituting  a  defense,  or  the  subject-matter  of  cross-com 
plaint  which  may  entitle  a  defendant  to  relief  against  the 
plaintiff  alone,  or  against  the  plaintiff  and  a  co-defendant. 
Pr.  Act,  46. 

Sham  answer.  10  Cal.  29.  Two  classes  of  defense.  10 
Cal.  27.  General  denial,  what  it  puts  in  issue.  10  Cal.  28, 
304;  2  Cal.  513;  11  Cal.  70;  21  Cal.  50.  Specific  denial 
of  several  allegations,  effect  of.  4  Cal.  120;  22  Cal.  539. 
Failure  to  deny  material  averments,  effect  of.  12  Cal.  403. 
What  must  be  denied.  4  Cal.  202;  21  Cal.  215;  22  Cal.  229. 
What  is  sufficient  denial  of  allegation.  10  Cal.  230;  12  Cal. 
227;  14  Cal.  113.  Denial  of  value.  22  Cal.  651. 

Pleas,  of  New  Matter— Payment— Statute  of  Limitations. 

SEC.  11.  New  matter  must  be  specially  pleaded.  10  Cal. 
304,  30;  21  Cal.  50,  11;  9  Cal.  74,  59;  13  Cal.  430;  5  Cal. 
161.  What  is  new  matter.  21  Cal.  11,  50;  10  Cal.  27.  Is 
a  plea  of  payment  new  matter  in  the  sense  of  the  statute  ? 
21  Cal.  74,  75.  The  plea  in  abatement.  1  Cal.  176,  177; 
10  Cal.  555,  560;  4  Cal.  313.  The  plea  of  acquisition  of 
another's  interest.  4  Cal.  229.  "Of  alteration.  5  Cal.  175. 
Of  former  recovery.  10  Cal.  583.  Of  fraud.  5  Cal.  160. 
Of  the  statute  of  limitations.  23  Cal.  16;  18  Cal.  482;  29 
Cal.  20;  35  Cal.  122;  6  Cal.  430.  It  is  usually  as  follows: 
"That  the  cause  of  action  set  forth  therein  did  not  ac 
crue  within  ....  years  before  the  commencement  of  this 

action." 

- 

Separate  Defense. 

SEC.  12.  Defenses  separate.  8  Cal.  590;  11  Cal.  38. 
To  actions  on  arbitration  bond.,  12  Cal.  340. 

Demurrers. 

SEC.  13.  Demurrer,  effects  of.  3  Cal.  326.  Objections 
that  must  be  taken  by.  6  Cal.  68,  183,  473;  4  Cal.  313, 
198;  7  Cal.  334;  10  Cal.  560.  When  it  lies.  19  Cal.  85, 
481,  482,  483;  22  Cal.  457;  18  Cal.  314;  12  Cal.  314;  10  Cal. 
170,  555,  464;  26  Cal.  294.  What  objections  may  be  taken 
by  answer  or  demurrer.  4  Cal.  313;  7  Cal.  510;  21  Cal.  635; 

. 


. 
640  JUSTICES'  TREATISE. 

22  Cal.  356.     What  objections  are  cured  by  verdict  or  de 
fault.     1  Cal.  395;  2  Cal.  462;  4  Cal.  244;  6  Cal.  231. 

Striking  out  Pleadings. 

SEC.  14.  Striking  out  pleadings.  22  Cal.  566;  13  Cal. 
623;  25  Cal.  31;  18  Cal.  171. 

Amendment  of. 

SEC.  15.  Amendments  of  pleadings.  4  Cal.  229;  2  CaZ. 
409;  16  Cal.  375;  23  Cal.  78. 

Allegations  and  Proofs  Must  Correspond. 

SEC.  16.  Allegations  and  proofs  must  correspond.  5  Cal. 
159;  3  Cal.  191,  476;  6  Cal.  181;  7  Cal.  136;  16  <7aZ.  72;  8 
Cal.  31;  14  <7«Z.  413;  13  Cal.  641,  642. 

Verification  of  Pleadings. 

SEC.  17.  Verification  of  pleadings:  17  Cal.  123;  19  Cal. 
40,  28;  6  Cal.  68;  9  Cal.  422;  10  Cal.  464. 

Pleadings  in  Justices'  Courts,  Generally. 

SEC.  18.  Pleading  shall  not  be  required  to  be  in  any  par 
ticular  form,  but  shall  be  such  as  to  enable  a  person  of  com 
mon  understanding  to  know  what  is  intended.  Gen.  Laws, 
5503.  The  courts  are  always  gentle  and  indulgent  to  plead 
ings  before  these  inferior  tribunals  (6  Cal.  19),  and  the  pro 
ceedings  so  far  as  respects  regularity  and  form,  will  be  re 
viewed  with  liberality;  technical  nicety  and  legal  precision 
are  not  required  in  the  pleadings;  but  it  will  be  sufficient  if 
there  appears  to  be  a  good  ground  of  action  within  the 
justice's  jurisdiction,  and  that  the  merits  of  the  cause  have 
been  tried.  3  Johns.  436;  10  Johns.  104.  The  supreme 
court  does  not  require  the  same  technical  formality  and  pre 
cision  in  the  pleadings  in  proceedings  before  justices  as  in 
that  court,  but  will  determine  on  them  when  brought  up  by 
certiorari,  according  to  the  merits  of  the  case  (5  Johns.  22) ; 
and  so  of  the  rules  of  evidence  (5  Wend.  275) ;  yet  sufficient 
regard  must  be  had  to  form  to  prevent  the  substantial  rights 
of  the  parties  from  being  sacrificed.  3  Chand.  (Wis.)  183. 


PLEADING. 


641 


SEC.  19.  It  is  not  the  policy  of  the  law  to  confine  parties 
to  any  nice  strictness  in  their  pleadings  (4  Col.  122 ;  13  Cal. 
599;  23  Cal.  378),  and  defects  in  the  proceedings  cannot  be 
availed  of  after  judgment.  1  Hemp.  44. 

SEC.  20.  Any  allegation  or  denial  which  apprises  the 
opposite  party  of  what  is  intended,  will  be  sufficient;  and  if 
such  party  be  at  a  loss  as  to  what  is  intended,  he  should 
require  the  pleader  to  be  more  explicit.  1  Sandf.  Sup.  Ct. 
260.  Where  plaintiff  avers  he  is  administrator  in  fact  of  the 
intestate,  and  this  is  not  denied  in  the  answer,  no  further 
proof  of  plaintiff's  right  to  sue  is  requisite.  13  Cal.  599. 

SEC.  21.  When  the  cause  of  action  or  counter-claim 
arises  upon  an  account  or  instrument  for  the  payment  of 
money  only,  it  shall  be  sufficient  for  the  party  to  deliver  a 
copy  of  the  account  or  instrument  to  the  court,  and  to  state 
that  there  is  due  to  him  thereupon,  from  the  adverse  party, 
a  specified  sum  which  he  claims  to  recover  or  set  off.  The 
court  may  at  the  time  of  the  pleading,  require  that  the  orig 
inal  account  or  instrument  be  exhibited  to  the  inspection  of 
the  adverse  party,  and  a  copy  to  be  furnished;  or  if  it  be  not 
so  exhibited  and  a  copy  furnished,  may  prohibit  its  being 
afterwards  given  in  evidence.  Gen.  Laivs,  5507. 

SEC.  22.  The  statute  requiring  an  instrument  in  writing, 
upon  which  a  suit  is  founded,  to  be  filed  before  suit  is  com 
menced,  is  directory  merely,  and  the  filing  may  be  waived 
by  the  defendant.  5  Wis.  516. 

SEC.  23.     Plaintiff  began  suit  in  a  justice's  court  by  filing 
as  his  complaint  the  following  note,  to  wit : 
.  "$150."  "FoKEsi  HILL,  Jan.  10th,  1857. 

For  value  received,  I  promise  to  pay  to  James  McDonald  the  sum  of  one 
hundred  and  fifty  dollars  sixty  days  after  the  date  of  this  note,  at  three  per 
cent  per  month,  or  until  paid.  JOHN  BEUNEB." 

"Indorsed."  "  FOBEST  HILL,  April  17th,  185S. 

For  value  received,  I  hereby  transfer  the  within  note  to  J.  C.  Bower. 

JAMES  MCDONALD."  • 

"  Also:  Pay  to  Juo.  Hamilton  or  order.  J.  C.  BOWEK." 

The  defendant,  McDonald,  who  alone  defended,  demur 
red,  on  the  ground  that  the  complaint  did  not  state  facts  suf 
ficient  to  constitute  a  cause  of  action,  and  for  misjoinder  of 
parties.  The  supreme  court  say:  "This  is  an  action  on  a 
non-negotiable  promissory  note.  The  note  was  assigned  by 

i  81 

• 


642  JUSTICES'  TEEATISE. 

McDonald,  the  payee,  to  one  Bower,  who  assigned  it  to  the 
plaintiff.  The  action  is  against  the  maker,  and  McDon 
ald  and  Bower,  assignors.  McDonald  was  the  only  party 
served  with  process,  and  the  defense  is  by  him  alone.  We 
cannot  perceive  in  the  objections  which  are  urged  to  the 
complaint  any  cause  for  reversal.  The  note  with  the  in 
dorsements  thereon  constituted  a  sufficient  foundation  for 
the  commencement  of  the  suit,  and  the  pleadings  in  the  case 
were  oral.  We  cannot  interfere  without  violating  the  prin 
ciple  upon  which  we  have  always  acted  in  such  cases."  18 
Col.  128-130. 

Construction  of  Pleadings. 

SEC.  24.  Great  latitude  is  allowed  to  pleadings  before 
justices,  and  courts  construe  them  liberally  (3  Barb.  Sup. 
Ct.  609;  16  Col.  374),  with  a  view  to  substantial  justice 
between  the  parties  without  reference  to  technical  nicety  or 
legal  precision.  4  Barb.  Sup.  Ct.  361. 

SEC.  25.  If  the  facts  stated  are  sufficient  to  show  the 
nature  of  the  claim  or  defense  relied  upon,  nothing  further 
is' required.  16  Cal.  374. 

& 

Rules  of  Pleading. 

SEC.  26.  Where  it  is  unnecessary  that  the  pleadings 
should  be  in  writing  it  is  difficult  to  lay  down  any  rule  for 
determining  their  sufficiency.  16  Cal.  374.  With  regard 
to  complaints  before  justices,  the  rules  of  pleading  are  not 
strictly  enforced.  25  Mo.  (4  Jones)  57. 

What  are  the  Pleadings  in  Justices'  Courts. 

SEC.  27.  The  pleadings  in  justices'  courts  shall  be:  1st. 
The  complaint  by  the  plaintiff,  stating  the  cause  of  action. 
2d.  The  answer  by  the  defendant,  stating  the  ground  of  the 
defense.  Gen.  Laws,  5501. 

Complaint. 

SEC.  28.  A  contract  containing  conditions  precedent,  to 
be  performed  by  the  plaintiff,  may  be  filed  as  the  cause  of 
action,  without  an  averment  of  performance  of  the  condi 
tions.  4  Blackf.  420. 


PLEADING.  643 

SEC.  29.  So  a  bond  with  condition,  which  appears  upon 
its  face  to  have  been  executed  between  the  parties  to  the 
suit,  may  be  filed  as  the  cause  of  action,  without  an  assign 
ment  of  breaches.  But,  in  a  suit  by  husband  and  wife,  a 
note  payable  to  the  wife  is  not  sufficient,  without  an  aver 
ment  of  her  marriage  with  her  co-plaintiff.  4  Blackf.  174. 

SEC.  30.  In  a  suit  by  the  assignee  against  the  assignor 
of  a  promissory  note,  the  plaintiff  need  only  file,  as  a  cause 
of  action,  the  note  with  the  assignment.  4  Blackf.  313. 

SEC.  31.  Under  the  statute  requiring  the  plaintiff  to  file 
with  the  justice,  before  the  issuance  of  the  summons,  the 
instrument  purporting  to  have  been  executed  by  the  defend 
ant,  the  filing  of  a  note  signed  by  the  defendant,  payable 
to  a  third  person,  and  not  legally  assigned  to  the  plaintiff 
so  as  to  give  him  a  right  to  sue  in  his  own  name,  is  not  a 
compliance  with  the  statute,  and  does  not  give  the  justice 
jurisdiction.  1  Eng.  371. 

SEC.  32.  Where  a  plaintiff  filed,  before  the  summons 
issued,  a  bill  purporting  to  be  a  bank  note,  upon  which  the 
name  of  the  defendant  did  not  appear,  it  was  Jield,  that,  as 
it  did  not  import  any  liability  upon  the  defendant,  it  could 
not  constitute  the  foundation  of  a  suit,  and  was  not  such  a 
filing  of  the  cause  of  action  as  is  required  by  the  statute  in 
Arkansas.  1  Eng.  182. 

SEC.  33.  A  suit  was  commenced  before  a  justice,  entitled 
"  G.  G.,  J.  J.  agent,  vs.  J.  P.,"  and  a  note  executed  by  the 
defendant  to  G.  G.  alone  was  filed  as  the  cause  of  action. 
It  was  held  that  G.  must  be  considered  as  the  only  plaintiff, 
and  that  the  note  was  legal  evidence.  4  Blackf.  187. 

SEC.  34.  The  complaint  shall  state  in  a  plain  and  direct 
manner  the  facts  constituting  the  cause  of  action.  90  Pr. 
Act,  573. 

SEC.  35.  A  complaint  containing  a  substantial  statement 
of  the  cause  of  action  is  sufficient.  1  Mann.  (Mich.)  352. 

SEC.  36.  If  it  apprise  the  defendant  of  the  nature  of  the 
claim  and  be  such  that  a  judgment  in  the  suit  may  be  used 
as  a  bar  to  another  action  for  the  same  cause.  9  Ind.  502  ; 
11  Lid.  203. 

SEC.  37.  Where  the  complaint,  in  addition  to  a  good 
cause  of  action,  contains  averments  and  prays  relief  res- 


644  JUSTICES'  TEEATISE. 

pectiug  matters  not  within  the  jurisdiction  of  the  court,  the 
action  should  not  for  that  reason  be  dismissed,  but  the 
court  should  direct  an  amendment  or  disregard  the  objec 
tionable  matter.  20  Cat.  282. 

SEC.  38.  Although  parties  are  not  held  to  strictness  in 
pleading,  yet  the  substance  of  an  issue  must  be  formed. 
Where  the  action  is  in  form  ex  delicto,  the  plaintiff  should 
allege  in  substance  that  he  has  sustained  some  damage  by 
the  act  or  omission  of  the  defendant  and  should  set  out  in 
an  intelligible  manner  the  nature  of  the  act  of  which  he 
complains.  3  Wis.  270. 

SEC.  39.  Where  an  offense  is  created  by  statute,  and  a 
penalty  inflicted,  it  is  necessary  that  the  party  seeking  a 
recovery  should,  in  general,  refer  to  such  statute ;  -  but  this 
rule  does  not  apply  to  pleadings  in  justices'  courts,  which 
are  usually  without  regard  to  form.  6  Col.  66. 

SEC.  40.  In  setting  out  a  cause  of  action,  a  substantial 
compliance  with  the  statute  is  all  that  is  requisite;  there 
fore,  the  expression  "  open  account,"  where  the  statute  says 
"book  account,"  is  not  error.  1  Hemp.  181. 

SEC.  41.  In  trespass  on  the  case  before  a  justice,  a  com 
plaint,  alleging  that  the  defendant  broke  down  and  de 
stroyed  the  pen  in  which  the  plaintiff's  sow  was  kept,  by 
which  she  was  wholly  lost  to  the  plaintiff,  is  bad,  unless  it 
also  state  that  the  pen  was  on  the  land  of  the  plaintiff. 
3  Green,  437. 

A  Complaint. 

SEC.  42.  For  "money  due  on  a  contract,  damages  for 
the  non-performance  of  a  contract,"  etc.,  was  held  sufficient 
to  allow  the  introduction  in  evidence  of  a  contract  for  the 
sale  of  lands,  the  defendant  having  pleaded  the  general 
issue,  and  requiring  no  specifications.  5  Hill,  60. 

SEC.  43.  Plaintiff  claims  fifty  dollars  for  work  and  mate 
rials,  is  a  sufficient  statement  to  sustain  a  judgment  by  de 
fault.  23  Ala.  775. 

SEC.  44.  In  actions  commenced  by  or  against  a  firm,  it 
is  not  essential  that  the  statement  of  the  cause  of  action 
should  set  out  the  names  of  the  persons  composing  the  firm, 
though  it  is  necessary  that  such  actions  should  be  brought 


PLEADING.  64.5 

by  or  against  the  persons  composing  an  incorporated  com 
pany  in  their  individual  names.  2  Carter  (Ind.)  551. 

SEC.  45.  The  complaint  need  not  show  that  the  justice 
has  jurisdiction;  but,  if  it  show  the  contrary,  the  suit  must 
be  dismissed.  4  Blackf.  299. 

SEC.  46.  If  the  plaintiff  annex  to  his  complaint  or  file 
with  the  justice  at  the  time  of  issuing  the  summons,  a  copy 
of  the  promissory  note,  bill  of  exchange,  or  other  written 
obligation  for  the  payment  of  money  upon  which  the  action 
is  brought,  the  defendant  shall  be  deemed  to  admit  the 
genuineness  of  the  signatures  of  the  makers,  indorsers  or 
assignors,  thereof,  unless  he  specifically  deny  the  same  in 
his  answer  and  verify  by  his  oath.  Pr.  Act,  577,  Sec.  94; 
Gen.  Laws,  5508. 

Answer. 

SEC.  47.  The  answer  may  contain  a  denial  of  any  of  the 
material  facts  stated  in  the  complaint  which  the  defendant 
believes  to  be  untrue,  and  also  a  statement,  in  a  plain  and 
direct  manner,  of  any  other  facts  constituting  a  defense 
or  a  counter-claim  upon  which  an  action  may  be  brought 
against  the  plaintiff  in  a  justice's  court.  Gen.  Laics,  5505. 

SEC.  48.  The  defendant  is  not  bound  to  set  off  unliqui 
dated  damages.  20  111.  93. 

SEC.  49.  A  statement  in  answer  that  the  party  has  not 
sufficient  knowledge  or  information  in  respect  to  a  particu 
lar  allegation  in  the  previous  pleading  of  the  adverse  party 
to  form  a  belief,  shall  be  deemed  equivalent  to  a  denial. 
Gen.  Laws,  5506. 

SEC.  50.  An  answer  denying  generally  the  allegations  of 
a  verified  complaint,  conforms  substantially  to  the  require 
ments  of  the  statute,  and  puts  the  plaintiff  in  proof  of  every 
thing  necessary  to  maintain  the  action.  17  Cat.  85. 

SEC.  51.  Where  a  declaration  contains  a  count  for  a 
cause  of  action  within  a  justice's  jurisdiction  and  another 
for  a  matter  of  which  he  has  no  jurisdiction,  a  plea  to  the 
jurisdiction  answering  both  counts  is  bad.  4  Denio,  453. 

SEC.  52.  A  defendant  does  not  waive  a  plea  to  the  juris 
diction  of  a  justice  by  pleading  the  general  issue  after  the 
justice  has  overruled  his  first  plea.  9  Barb.  Sup.  Ct.  60. 


646  JUSTICES'  TEEATISE. 

SEC.  53.  The  defendant  should  state  his  grounds  of  de 
fense  before  the  trial,  and  the  justice  should  note  them  on 
the  docket.  2  Oilman,  389. 

SEC.  54.  A  justice  has  a  right  to  permit  a  defendant, 
who  has  omitted  to  appear  on  the  return  day  of  the  sum 
mons,  to  plead  on  a  day  to  which  the  cause  has  been  ad 
journed,  upon  a  proper  excuse  for  the  default  being  shown; 
still,  it  is  a  matter  of  discretion.  4  Denio,  576. 

Demurrer. 

SEC.  55.  Either  party  may  object  to  a  pleading  of  his 
adversary  or  to  any  part  thereof,  that  it  is  not  sufficiently 
explicit  to  enable  him  to  understand  it  or  that  it  contains 
no  cause  of  action  or  defense,  although  it  be  taken  as  true. 
If  the  court  deem  the  objection  well  founded,  it  shall  order 
the  pleading  to  be  amended,  and  if  the  party  refuse  to 
amend  the  defective  pleading  shall  be  disregarded.  Pr.  Ad, 
578,  Sec.  95 ;  Gen.  Laws,  5509. 

SEC.  56.  A  motion  to  dismiss  a  complaint  on  the  ground 
that  it  does  not  state  facts  enough  to  constitute  a  cause  of 
action,  as  it  depends  upon  general  principles  of  law  and 
pleading  and  not  on  rules  of  practice  which  pertain  to  jus 
tices'  courts,  is  improper  in  such  courts.  17  Barb.  (N.  Y.) 
141. 

SEC.  57.  By  proceeding  to  trial  on  the  merits,  without 
exception  to  the  cause  of  action,  any  defect  in  that  particu 
lar  is  waived.  2  Greene  (Iowa),  350. 

SEC.  58.  So,  an  objection  to  the  form  of  a  complaint, 
which  may  be  taken  by  demurrer,  will  be  considered  as 
waived  if  not  taken  at  the  time  of  joining  issue.  4  Ear}). 
Sup.  Ct.  361. 

SEC.  59.  So,  also,  an  objection  that  the  plaintiff  has  de 
clared  both  on  a  contract  and  a  tort,,  must  be  made  at  the 
time  of  pleading.  3  Johns.  436. 

SEC.  60.  Where  a  party  instead  of  demurring  for  infor 
mality  goes  to  trial,  it  must  be  considered  as  cured  by  the 
verdict.  3  Cal  122. 

When  Pleadings  are  to  be  in  Writing  and  Verified. 

SEC.  61.     The  pleadings  shall  be  in  writing  and  verified 


PLEADING.  .      647 

by  the  oath  of  the  party,  his  agent  or  attorney,  when  the 
action  is: 

1st.  For  the  foreclosure  of  any  mortgage  or  the  enforce 
ment  of  any  lien  on  personal  property. 

2d.  For  a  forcible  or  unlawful  entry  upon,  or  a  forcible 
or  unlawful  detention  of  lands,  tenements  or  other  posses 
sions. 

3d.  To  recover  possession  of  a  "mining  claim."  In  other 
cases  the  pleadings  may  be  oral  or  in  writing.  Gen.  Laws, 
5502. 

[Unlike  the  provisions  of  the  civil  practice  act  with  reference  to  pleadings 
in  actions  in  courts  of  record.] 

SEC.  62.  The  act  does  not  require  the  answer  to  a  veri 
fied  complaint  in  an  action  in  a  justice's  court  to  controvert 
specifically  the  material  allegations  of  such  complaint.  It  is 
sufficient  if  the  answer  deny  the  material  allegations  either 
generally  or  specifically.  Pr.  Act,  Sec.  574;  17  Cal.  85. 
Where  the  answer1,  in  addition  to  certain  special  denials, 
the  form  of  which  is  open  to  criticism,  contains  a  general 
denial  of  all  the  allegations  of  the  complaint,  it  is  sufficient 
to  create  an  issue  and  to  require  evidence  from  the  plaintiff. 
20  Cal.  48,  49. 

Verification  of  Pleadings. 

SEC.  63.  In  all  cases  of  the  verification  of  a  pleading, 
the  affidavit  of  the  party  shall  state  that  the  same  is  true  of 
his  own  knowledge,  except  as  to  the  matters  which  are 
therein  stated  on  his  information  or  belief,  and  as  to  those 
matters  that  he  believes  it  to  be  true.  And  where  a  plead 
ing  is  verified  it  shall  be  by  the  affidavit  of  the  party,  unless 
he  be  absent  from  the  county  where  the  attorney  resides  or 
from  some  cause  unable  to  verifiy  it,  or  the  facts  are  within 
the  knowledge  of  his  attorney  or  other  person  verifying  the 
same.  When  the  pleading  is  verified  by  the  attorney  or 
any  other  person  except  tBe  party,  he  shall  set  forth  in 
the  affidavit  the  reasons  why  it  is  not  made  by  the  party. 
When  a  corporation  is  a  party  the  verification  may  be  made 
by  any  officer  thereof;  or,  when  the  state  or  any  officer 
thereof  in  its  behalf  is  a  party,  the  verification  may  be 
made  by  any  person  acquainted  with  the  facts,  except  that 


648  JUSTICES'  TEEATISE. 

in  actions  prosecuted  by  the  attorney-general  in  behalf  of 
the  state  the  pleadings  need  not,  in  any  case,  be  verified. 
Gen.  Laws,  4995. 

Form  of  Verification  by  Party  to  the  Action. 

SEC.  64.  The  following  is  a  form  of  verification  by  party 
ta  the  action : 

State  of ,  I 

county  of   [    ' 

,  being  duly  sworn,  says:  That  he  is  the  plaintiff  [or,  "defend 
ant"]  in  the  above  entitled  action;  that  he  has  read  [or,  "has  heard  read," 
as  the  case  may  be]  the  foregoing  complaint  [or,  "answer"]  and  knows 
the  contents  thereof,  and  that  the  same  is  true  of  his  own  knowledge,  except 
as'  to  the  matters  which  are  therein  stated  on  his  information  or  belief,  and 
as  to  those  matters  that  he  believes  it  to  be  true. ' 


Subscribed  and  sworn  to  before  me,  this  ....  day  of  . . . .,  A.D.  18. .. 

Justice  of  the  peace. 
9 
Form  of  Verification  by  Other  Person  than  Party  to  the  Action. 

SEC.  65.  The  following  is  a  form  of  verification  by  other 
person  than  party  to  the  action : 

State  of  ,  I 

county  of  f  Bi 

,  being  duly  sworn  on  behalf  of  the  plaintiff  [or,  "  defendant "] 

in  the  above  entitled  action,  says:  That  he  has  read  [or,  "has  heard  read," 
as  the  case  may  be]  the  foregoing  complaint  [or,  "answer"]  and  knows  the 
contents  thereof,  and  that  the  same  is  true  of  his  own  knowledge,  except 
as  to  the  matters  which  are  therein  .stated  on  information  or  belief,  and  as  to 
those  matters  that  he  believes  it  to  be  true. 

That  the  said  plaintiff  [or,  "defendant"]  is  absent  from  the  county  of 
. . . .,  where  his  attorney  resides  [or,  state  the  cause  of  the  party's  inability 
to  verify  the  pleading]  and  the  facts  are  within  the  knowledge  of  said  affiant 
who  is  the  agent  [or,  "attorney"]  of  the  said  plaintiff  [or,  "defendant"], 
and  therefore  he  makes  this  affidavit. 


Subscribed  and  sworn  to,  before  me  this day  of ,  A.D.  18 ... 

Justice  of  the  peace. 
What  Justice  Shall  do  With  the  Pleadings. 

SEC.  66.  "When  the  pleadings  are  oral,  the  substance  of 
them  shall  be  entered  by  the  justice  in  his  docket;  when  in 
writing,  they  shall  be  filed  in  his  office  and  a  reference  to 
them  made  in  the  docket.  Gen.  Laws,  5503. 


PLEADING.  649 

Amendments  of  Pleadings. 

SEC.  67.  The  pleadings  may  be  amended  at  any  time 
before  the  trial,  to  supply  a  deficiency  or  omission,  when 
by  such  amendment  substantial  justice  will  be  promoted. 
If  the  amendment  be  made  after  the  issue,  and  it  be  made 
to  appear  to  the  satisfaction  of  the  court  by  oath,  that  an 
adjournment  is  necessary  to  the  adverse  party  in  conse- 
sequence  of  such  amendment,  an  adjournment  shall  be 
granted.  The  court  may  also,  in  its  discretion,  require  as 
a  condition  of  an  amendment,  the  payment  of  costs  to  the 
adverse  party,  to  be  fixed  by  the  court,  not  exceeding 
twenty  dollars;  but  such  payment  shall  not  be  required  un 
less  an  adjournment  is  made  necessary  by  the  amendment; 
nor  shall  an  amendment  be  allowed  after  a  witness  is  sworn 
on  the  trial,  when  an  adjournment  thereby  will  be  made 
necessary.  Gen.  Laivs,  5511.  Amendments  should  be  lib 
erally  allowed  by  ihferior  courts  in  advancement  of  justice, 
and  to  secure  a  fair  and  speedy  trial  on  the  merits.  14  Cal. 
201. 

SEC.  68.  Where  a  justice  overrules  a  defense,  on  the 
ground  that  it  is  not  well  pleaded,  it  is  his  duty  to  order 
the  pleading  to  be  amended,  and  having  permitted  the  de 
fendant  to  present  his  defense,  he  should  allow  him  to  per 
fect  his  pleading  for  that  purpose.  13  Barb.  533. 

SEC.  69.  He  has  the  right  to  allow  the  complaint  to  be 
amended  in  all  respects,  so  that  the  case  may  be  deter 
mined  on  its  substantial  merits;  and  this,  whether  the  de 
fect  be  in  the  statement  of  jurisdictional  or  any  other  facts. 
The  greatest  liberality  and  indulgence  should  be  extended 
in  all  such  applications.  11  Cal.  280. 

SEC.  70.  Great  latitude  is  given  to  the  courts  by  our 
statute,  in  amending  and  altering  pleadings,  etc. ;  and  they 
are  required  to  administer  substantial  justice  between  the 
parties.  2  Cal.  195. 

SEC.  71.     It  is  error  for  a  justice  to  dismiss  a  complaint, 
on  motion,  upon  the  ground  that  it  does  not  contain  facts 
enough  to  constitute  a  cause  of  action,  without  also  giving 
the  right  to  amend.     17  Barb.  (N.  Y.)  141. 
82 


650  JUSTICES'  TREATISE. 

Evidence  Under  the  Pleadings. 

SEC.  72.  A  variance  between  the  proof  on  the  trial  and 
the  allegations  in  a  pleading  shall  be  disregarded  as  imma 
terial,  unless  the  court  be  satisfied  that  the  adverse  party 
has  been  misled  to  his  prejudice  thereby.  Pr.  Act,  579, 
Sec.  96. 

SEC.  73.  The  want  of  jurisdiction  may  be  pleaded  or 
given  in  evidence  under  the  general  issue.  4  Black/.  299. 

SEC.  74.  The  rule  that  where  a  party  seeks  to  recover 
on  a  special  agreement,  and  fails  in  his  proof,  he  may  still 
recover  for  work  under  it,  if,  supposing  there  had  been  no 
special  agreement,  he  could  have  recovered,  applies  to 
pleadings  in  justices'  courts.  2  E.  D.  Smith  (N.  Y.)  374. 

SEC.  75.  The  date  at  the  head  of  an  account  do*es  not 
preclude  the  plaintiff  from  proving  the  time  when  the  vari 
ous  items  accrued.  It  does  not  pre-suppose  the  entire  in 
debtedness  to  have  accrued  prior  to  tjiat  time.  Such  a 
rigid  construction  of  the  accounts  of  illiterate  men  would 
tend  to  prevent  justice.  15  Mo.  442. 

SEC.  76.  A  reply  not  being  admissible  in  the  justice's 
court,  the  allegation  of  new  matter  in  an  answer  in  that 
court,  must  in  all  cases  necessarily  be  deemed  controverted 
by  the  plaintiff;  and  it  is  competent  for  him  to  countervail 
it  by  evidence  either  in  direct  denial  or  of  new  matter  by 
way  of  avoidance.  Therefore,  where  in  an  action  before  a 
justice,  the  defendant  pleads  infancy,  the  plaintiff  may, 
without  replying  or  amending  at  the  trial,  show  a  new 
promise  by  the  defendant  after  he  became  of  age.  22 
Barb.  (N.  Y.)  150. 


CHAPTER    LXXVIII. 

RELEASE. 

SECTION  1.  A  covenant  not  to  sue,  operates  as  a  release 
only  in  order  to  avoid  circuity  of  action.  If  the  covenant 
be  broken,  the  strict  right  of  the  covenantee  is  to  recover 
on  the  covenant,  and  as  the  recovery  must  be  the  same  in 
both  suits,  the  doctrine  of  release  is  resorted  to ;  but  this 


THE  SUMMONS.  '        651 

doctrine  being  technical  cannot  be  extended  in  its  construc 
tion,  and  where  the  debt  is  joint  and  the  covenant  not  to 
sue  is  made  to  a  portion  only  of  the  debtors,  it  will  not  be 
held  as  a  release  to  either,  but  the  party  who  holds  the 
covenant  must  be  left  to  his  action  upon  it.  4  Col.  64. 

SEC.  2.  A  release  of  one  joint  debtor  is  a  release  of  the 
others,  but  it  must  be  a  technical  release  under  seal.  6 
Col.  186.  A  receipt  given  to  one  joint  debtor  on  a  note  for 
a  part  payment,  coupled  with  the  words  "which  is  in  full 
on  his  part  on  the  within  note  and  the  said  A  B  is  hereby 
discharged  from  all  obligation  in  the  same,"  is  not  such  a 
release  as  will  discharge  the  others.  6  Cal.  183. 


THE  SUMMONS. 


JURISDICTION  GIVEN  BY  SUMMONS          1 

CONTENTS  OF  SUMMONS  2-6 

TIME  IN  WHICH  SUMMONS  TO 
KEQUIRE  DEFENDANT  TO 
APPEAR  . .  7-8 


BLANKS  TO  BE  FILLED  BY  JUS 
TICE  ONLY 9-10 

AMENDMENT  OF  SUMMONS 11 

FORM  OF  SUMMONS 12 

FORM  OF  SUMMONS  IN  JUSTICE'S 

COURT  . .  12 


Jurisdiction  of  Person  given  by  Summons. 

SECTION  1.  The  judgments  of  courts  are  not  binding 
unless  jurisdiction  be  first  had  of  the  person  of  the  party 
to  be  affected  by  them.  This  jurisdiction  is  given  in  this 
state  by  a  form  of  notice  prescribed  by  statute.  The 
statute  in  such  cases  must  be  substantially  pursued.  11 
Cal.  378.  The  mere  recital  in  a  transcript  from  a  justice's 
docket  that  defendant  was  duly  served,  is  not  sufficient.  Be 
fore  the  transcript  can  be  admitted  to  establish  the  rights 
of  one  holding  under  the  judgment  of  a  justice,  the  facts  in 
regard  to  the  service  of  summons  must  appear.  McDonald 
vs.  Prescott  and  Clark,  2  Nev.  109. 

Contents  of  Summons. 

SEC.  2.  The  summons  shall  be  addressed  to  the  defend 
ant  by  name,  or  if  his  name  be  unknown,  by  a  fictitious 


652      •  JUSTICES'  TEEATISE. 

name,  and  shall  summon  him  to  appear  before  the  justice 
at  his  office,  naming  its  township  or  city,  and  at  a  time 
specified  therein,  to  answer  the  complaint  of  the  plaintiff, 
for  a  cause  of  action  therein  described  in  general  term's 
sufficient  to  *  apprise  the  defendant  of  the  nature  of  the 
claim  against  him;  and  in  action  for  money  or  damages, 
shall  state  the  amount  for  which  the  plaintiff  will  take  judg 
ment,  if  the  defendant  fail  to  appear  and  answer.  It  shall 
be  subscribed  by  the  justice  before  whom  it  is  returnable. 
Gen.  Laws,  5471. 

SEC.  3.  A  justice  having  no  jurisdiction  of  the  cause  by 
virtue  of  the  summons  issued,  may,  by  the  defendant's  ap 
pearance  and  plea,  acquire  jurisdiction  of  the  person  (1  E. 
D.  Smith,  N.  Y.  615),  for  the  only  object  of  a  summons  is 
to  bring  a  party  into  court,  and  if  that  object  be  attained 
by  the  appearance  and  pleading  of  a  party,  there  can  be  no 
injury  to  him.  7  Cal.  587;  21  Gal.  55. 

SEC.  4.  The  cause  of  action  must  be  stated  in  the  sum 
mons  with  sufficient  certainty  to  apprise  the  defendant  of 
the  legal  character  of  the  action.  And  the  proof  must  sup 
port  the  summons.  A  summons  to  answer  to  an  action  "on 
a  note  of  hand,"  is  not  supported  by  a  writing  obligatory. 
I  Pike,  108. 

SEC.  5.  The  plaintiff  cannot  recover  a  sum  exceeding  the 
amount  indorsed  on  the  summons.  4  Gilm.  64. 

SEC.  6.  The  signature  of  a  justice  to  a  summons  is  suffi 
cient  if  it  give  his  surname  in  full,  and  his  Christian  name 
by  initials.  4  Zabr.  (N.  J. )  33,  838.  The  summons  does 
not  require  a  seal.  7  Iredell,  400. 

Time  in  which  Summons  to  Require  Defendant  to  Appear. 

SEC.  7.  The  time  in  which  the  summons  shall  require 
the  defendant  to  appear  and  answer  the  complaint  shall  be 
as  follows: 

1st.  If  the  plaintiff  and  defendant  reside  within  the  town 
ship  when  [where]  the  action  is  brought,  within  ten  days 
after  the  service  thereof. 

2d .  If  the  plaintiff  and  defendant  reside  out  of  the  town 
ship  but  within  the  county  where  the  action  is  brought, 
within  five  days  after  the  service  thereof. 


THE   SUMMONS.  653 

3d.  If  the  plaintiff  reside  out  of  the  township  where  the 
action  is  brought  and  the  defendant  resides  in  said  township, 
within  three  days  after  the  service  thereof. 

4th.  If  the  defendant  resides  out  of  the  county  or  town 
ship  in  which  the  action  is  brought  and  the  plaintiff  resides 
in  said  township,  within  fifteen  days  after  the  service  there 
of.  Stats.  1867-8,  551,  552. 

SEC.  8.  With  reference  to  a  judgment  of  a  court  of  gen 
eral  jurisdiction,  the  supreme  court  say:  "The  fact  that  the 
defendant,  although  served  with  process,  was  not  given  the 
time  allowed  by  the  statute  to  appear  and  answer,  is  a  good 
reason  for  quashing  the  writ  upon  motion  by  amicus  curiae, 
or  for  extension  of  time  to  appear  and  answer  on  motion  of 
defendant,  it  would  be  a  good  objection  on  error,  arrest  of 
judgment  or  motion  for  new  trial;  but  the  defendant  having 
been  summoned  to  appear  on  a  day  certain,  it  cannot  be 
said  that  the  court  had  no  jurisdiction  of  the  person,  so  as 
to  make  its  judgment  a  nullity."  7  Col.  64. 

£ 

Blanks  to  be  Pilled  by  Justice  only. 

SEC.  9.  The  summons,  execution  and  every  other  paper, 
made  or  issued  by  a  justice,  except  a  subpena,  shall  be 
filed  without  a  blank  left  to  be  filled  by  another,  otherwise 
it  shall  be  void.  Pr.  Act,  611;  Gen.  Laws,  5542. 

SEC.  10.  A  justice's  writ,  signed  by  the  authority  of  the 
justice  but  not  in  his  presence,  is  not  valid.  4  Foster 
(N.  H.)  263. 

Amendment  of  Summons. 

SEC.  11.  The  process  of  a  court  is,  to  a  certain  extent, 
within  its  own  control.  The  object  of  the  summons  is  to 
put  the  party  upon  notice  of  the  demand  against  him.  It 
is  error  for  the  plaintiff  to  take  judgment  by  default  without 
the  proper  notice  required  by  law  to  be  conveyed  in  the 
writ.  The  court  has  power  to  amend  the  summons  by  in 
serting  the  notice  of  the  cause  of  action,  and  that  unless  the 
defendant  appear  and  answer  within  the  time  specified, 
judgment  by  default  will  be  taken  against  him,  as  it  operates 
no  hardship  or  surprise  upon  the  defendant.  2  Cal.  194. 


654  JUSTICES'  TREATISE. 

Form  of  Summons. 
SEC.  12.     The  following  is  a  form  of  summons : 

In  the  justice's  court  of township,  in  the  county  of ,  state  of 


plaintiff, 
agio-list  [     Summons. 


defendant. 

The  people  of  the  state  of send  greeting  to ,  defendant: 

You  are  hereby  required  to  appear  before  me,  at  my  office  in 

township,  in  the  county  of ,  in  an  action  brought  against  you  by  the 

above-named  plaintiff,  and  answer  the  complaint  in  said  action  on  file  in  my 
said  office,  within days  (exclusive  of  the  day  of  service)  after  the  serv 
ice  on  you  of  this  summons. 

The  said  action  is  brought  to  recover  of  you  the  sum  of due  for  mer 
chandise  sold  and  delivered  to  you  at  sundry  times  between  the  . . '. .  day  of 
,  18 . . ,  and  the day  of ,  18 . . ,  as  per  said  complaint. 

And  you  are  hereby  notified,  that  if  you  fail  to  appear  and  answer  said 
complaint  as  above  required,  said  plaintiff  will  take  judgment  against  you 

for  the  said  amount  of dollars,  together  with  costs  and  damages. 

To  the  sheriff  or  any  constable  of  said county,  greeting: 

Make  legal  service  and  due  return  hereof. 

Given  under  my  hand,  this day  of A.D.  18 . . 


Justice  of  the  peace  of  said  township. 


Form  cf  Summons  in  Justices'  Court. 
In  justices'  court  of  the  county  of  . . . . ,  state  of  .... 


plaintiff, 
against 


defendant. 

Action  brought  in  justices'  court  of  the  county  of  . . . . ,  and  complaint 
filed  in  the  office  of  the  clerk  of  said  court. 

The  people  of  the  state  of to ,  greeting : 

You  are  hereby  required  to  appear  in  an  action  brought  against  you  by 
the  above-named  plaintiff  in  the  justices'  court  of  the  county  of  . . . . ,  and  to 
answer  the  complaint  filed  therein  within  ten  days  (exclusive  of  the  day  of 
service)  after  the  service  on  you  of  this  summons. 

The  said  action  is  brought  to  recover  of  you  the  sum  of. . .  .dollars,  principal 
and  interest,  upon  your  promissory  note  made  and  delivered  to  the  plaintiff 
for  the  sum  of  dollars,  on  the day  of ,  18 . . ,  as  per  said  com 
plaint. 

And  you  are  hereby  notified,  that  if  you  fail  to  appear  and  answer  the 
said  complaint,  as  above  required,  the  said  plaintiff  will  take  judgment 


SERVICE   OP   SUMMONS. 


655 


against  you  for  said  amount  and  interest  due,  together  with   costs  and 
damages. 

This  action  has  been  assigned,  and  you  are  required  to  appear  for  trial 
before  ........  ,  one  of  the  justices  of  said  court. 

To  the  sheriff  or  any  constable  of  the  county  of  .  .  .  .  ,  greeting  : 

Make  legal  service  and  due  return  hereof. 

Given  under  my  hand,  this  ----  day  of  ----  ,  A.D.  18  .  . 


,  attorney  for  plaintiff. 


Justice  of  the  peace  of  said  county. 
............  ,  clerk. 


CHAPTER    LXXX. 
SEEYICE    OF    SUMMONS. 


WHEN  SERVICE  OF  SUMMONS  NOT 

NECESSARY 1-2 

ACKNOWLEDGMENT  or  SERVICE.  3 

BY  WHOM  SUMMONS  TO  BE 

SERVED 4 

FORM  OF  AFFIDAVIT  FOE  DEPU 
TATION  OF  PERSON  TO  SERVE 
SUMMONS,  ETC 5 

FORM  OF  REQUEST  TO  DEPUTE 

PERSON  TO  SERVE  SUMMONS  6 

FORM  OF  DEPUTATION  TO  BE  IN 
DORSED  ON  SUMMONS,  ETC.  7 

MODE  OF  SERVICE  IN  ACTIONS 

AGAINST  CORPORATIONS 8-10 

MODE  OF  SERVICE  IN  ACTIONS 

AGAINST  MINORS 11-12 

MODE  OF  SERVICE  IN  ACTIONS 

AGAINST  INSANE  PERSONS  . .  13 

MODE  or  SERVICE  IN  ACTIONS  IN 

ALL  OTHER  CASES 14 

RETURN  OF  SERVICE  OF  SUM 
MONS  . .  .  15-17 


FORM  OF  RETURN  OF  SERVICE 
WHEN  DEFENDANT  is  A  COR 
PORATION,  ETC 18 

FORM,  ETC.,  WHEN  DEFENDANT 

is  A  MINOR 19 

FORM,  ETC.,  WHEN  DEFENDANT 

is  INSANE 20 

FORM,  ETC.,  IN  ALL  OTHER 

CASES 21 

FORM,  ETC.,  WHEN  DEFENDANT. 

CANNOT  BE  FOUND 22 

MODE  OF  SERVICE  WHEN  DE 
FENDANT  IS  OUT  OF  THE 
STATE 23-25 

FORM  OF  AFFIDAVIT  FOR  PUBLI- 

'  CATION  OF  SUMMONS 26 

FORM  OF  ORDER  FOR  PUBLICA 
TION  OF  SUMMONS 27 

FORM  OF  AFFIDAVIT  OF  PUBLICA 
TION  OF  SUMMONS 28 

FORM  OF  AFFIDAVIT  OF  DEPOSIT 
OF  SUMMONS  IN  THE  POST- 
OFFICE 29 


"When  Service  of  Summons  not  Necessary. 

SECTION  1.  An  appearance  entered  by  attorney,  whether 
authorized  or  not,  is  a  good  and  sufficient  appearance  to 
bind  the  party,  except  in  those  cases  where  fraud  has  been 
used  or  it  is  shown  that  the  attorney  is  unable  to  respond 


656  JUSTICES'  TREATISE. 

in  damages.  4  Cal.  280.  Mistake  of  counsel  is  never 
ground  of  error.  The  appearance  of  a  licensed  attorney 
and  counsellor  is  prima  facie  evidence  that  he  has  been  re 
tained  in  the  cause;  and  it  would  be  a  dangerous  practice 
to  afford  litigants  an  opportunity  of  availing  themselves  of 
or  escaping  from  the  judgments  of  courts  upon  such  a  plea, 
An  appearance  by  attorney  at  common  law  and  by  the  ex 
press  letter  of  our  statute  amounts  to  an  acknowledgment 
or  waiver  of  evidence.  4  Cal.  281. 

SEC.  2.  But  the  appearance  of  a  party  in  court  after  the 
judgment  was  rendered,  and  his  motion  to  set  it  aside,  do 
not  cure  the  fatal  defect  of  a  wrant  of  jurisdiction.  If  the 
court  should  set  aside  the  judgment  and  permit  him  to 
answer  to  the  merits,  a  judgment  subsequently  rendered 
would  be  valid;  but  the  appearance  of  a  party  for  the  pur 
pose  |of  objecting  to  the  prior  void  proceeding  will  not 
cure  it.  8  Cal.  569. 

Acknowledgment  of  Service. 

SEC.  3.  Courts  will  take  judicial  notice  of  the  signatures 
of  their  officers,  as  such;  but  there  is  no  rule  which  ex 
tends  such  notice  to  the  signatures  of  parties  to  a  cause. 
When,  therefore,  the  proof  of  service  of  process  consists  of 
the  written  admissions  of  defendants,  such  admissions,  to 
be  available  in  the  action,  should  be  accompanied  with 
some  evidence  of  the  genuineness  of  the  signatures  of  the 
parties.  In  the  absence  of  such  evidence,  the  court  cannot 
notice  them.  9  Cal.  321.  An  acknowledgment  of  service 
of  summons  is  only  sufficient  when  reduced  to  writing  and 
subscribed  by  the  party.  A  verbal  acknowledgment  to  the 
sheriff  will  not  suffice.  11  Cal.  314. 

By  "Whom  Summons  to  be  Served. 

SEC.  4.  The  summons  shall  be  served  by  the  sheriff  or 
a  constable  of  the  county.  Gen.  Laws,  5473.  The  justice 
may,  however,  at  the  request  of  a  party  or  good  cause 
being  shown  therefor  under  oath,  but  not  otherwise,  spe 
cially  depute  any  discreet  and  responsible  person  of 
suitable  age  and  not  interested  in  the  action,  or  related  to 
such  justice  or  party,  to  serve  a  summons  or  execution, 


SEKVICE  OF   SUMMONS.  657 

with  or  without  an  order,  to  arrest  the  defendant,  or  with  or 
without  a  writ  of  attachment.  The  said  justice  shall  be 
liable  on  his  official  bond  for  all  official  acts  of  the  person 
so  deputed;  such  deputation  shall  be  in  writing  on  the 
process,  and  shall  state  the  reason  thereof.  Stat.  1865-6, 
467. 

Form  of  Affidavit  for  Deputation  of  Person  to  Serve  Summons,  etc. 

SEC.  5.     The  following  is  a  form  of  affidavit  for  deputa 
tion  of  person  to  serve  summons,  etc. : 

In  the  justice's  court  of  ....  township,  in  the  county  of  . . . . ,  state  of  .... 


plaintiff, 

against 


defendant. 

State  of ,  I 

county  of ,    j  " 

,  being  duly  sworn,  says  upon  information  and  belief  :  That  one 

is  fully  advised  of  the  whereabouts  of  the  defendant  in  the  above- 
entitled  action  [and  also,  of  the  property  liable  to  attachment  or  execution 
in  said  action,  or  state  such  other  facts  as  show  good  cause  for  the  deputa 
tion],  and  in  consequence  thereof  is  better  prepared  to  make  service  of  the 
summons  [and,  "order  to  arrest  the  said  defendant,"  or,  "attachment,"  or, 
"the  execution,"  as  the  case  may  be]  in  said  action  than  any  constable  of 

the  county  of  ....  ;  that  said is  a  discreet  and  responsible  person 

of  suitable  age,  to  wit :  over  twenty-one  years  of  age ;  is  not  interested  in  the 

said  action  and  is  not  related  to ,  the  justice  of  the  peace  of  said 

township,  or  to  any  of  the  parties  in  said  action. 


Subscribed  and  sworn  to  before  me,  this  ....  day  of  . . . . ,  A.D.  18 . . 

Justice  of  the  peace. 

Form  of  Request  to  Depute  Person  to  Serve  Summons,  etc.,  to  be 
annexed  to  the  Foregoing  Affidavit. 

SEC.  6.  The  following  is  a  form  of  request  to  depute 
person  to  serve  summons,  etc.,  to  be  annexed  to  the  fore 
going  affidavit: 

In  the  justice's  court  of  the  ....  township,  in  the  county  of  . . . . ,  state  of. ... 


plaintiff, 
against 


defendant. 

To ,  justice  of  the  peace  of  said  township : 

You  are  hereby  requested,  upon  the  foregoing  affidavit,  to  depute  . . . 
83 


658  JUSTICES'  TREATISE. 

named  therein,  to  serve  and  return  the  summons  [and,  "order  to  ar 
rest  the  defendant,"  or,  "attachment,"  or,  "the  execution,"  as  the  case  may 

be]  in  the  above  entitled  action.  ,  plaintiff, 

[or, ,  attorney  for  plaintiff  ]. 

Form  of  Deputation  to  be  Indorsed  on  Summons,  etc. 

SEC.  7.  The  following  is  a  form  of  deputation,  to  be 
indorsed  on  summons,  etc. : 

At  the  request  of  the  plaintiff  and  for  the  reason  that is  fully 

advised  of  the  whereabouts  of  the  defendant  in  the  within-entitled  action 
[or,  "  of  the  property  liable  to  attachment,"  or,  "  execution,  in  said  action  "] 
and  in  consequence  thereof  is  better  prepared  than  any  constable  in  the  coun 
ty  of  to  make  service  of  the  within  summons  [and,  "  the  order  to  arrest 

the  said  defendant, "  or,  "attachment,"  or,  "the  execution,"  or,  state  such 
other  reason  as  may  be  shown  by  the  affidavit  for  the  deputation],  and  good 
cause  being  shown  therefor  under  oath,  I  hereby  specially  depute  the  said 
t  a  discreet  and  responsible  person  of  suitable  age  and  not  inter 
ested  in  said  action  or  related  to  me  or  to  any  of  the  parties  in  said  action, 
to  serve  the  within  summons  [and,  "order  to  arrest  the  defendant,"  or, 
"attachment,"  or,  "the  execution"]. 

Justice  of  the  peace. 
Mode  of  Service  in  Actions  against  Corporations. 

SEC.  8.  If  the  action  be  against  a  corporation  the  sum 
mons  shall  be  served  by  delivery  of  a  copy  to  the  president 
or  other  head  of  the  corporation,  or  to  the  secretary,  cashier 
or  managing  agent,  thereof,  or  when  no  such  officer  resides 
in  the  county,  to  a  director  resident  therein.  Gen.  Laws, 
5473. 

SEC.  9.  The  summons  must  be  served  on  one  of  the  offi 
cers  or  agents  named  in  the  practice  act.  Service  on  a 
party  in  possession  of  the  property,  who  does  not  appear 
to  be  one  of  the  officers  named,  will  not  entitle  the  plaintiff 
to  a  judgment  by  default.  6  Cal*  186. 

SEC.  10.  Where,  in  an  action  against  an  incorporated 
company,  the  return  of  the  sheriff  showed  that  he  had 
served  the  summons  in  the  action  "upon  James  Street,  one 
of  the  proprietors  of  the  company,"  it  was  held  that  it  was 
not  sufficient  evidence  of  service  to  give  the  court  jurisdic 
tion,  it  not  appearing  that  Street  was  "president  or  head  of 
the  corporation,  or  secretary,  cashier  or  managing  agent, 
thereof."  The  summons  might  with  as  much  propriety  have 
been  served  upon  any  other  stranger.  10  Gal.  343,  344. 


SEKVICE  OF  SUMMONS.  659 


Mode  of  Service  of  Summons  against  Minors. 

SEC.  11.  If  the  action  be  against  a  minor  under  the  age 
of  fourteen  years  the  summons  shall  be  served  by  delivery 
of  a  copy  to  such  minor,  arid  also  to  his  father,  mother  or 
guardian,  or  if  there  be  none  within  the  county,  then  to 
any  person  having  the  care  or  control  of  such  minor,  or 
with  whom  he  resides  or  in  whose  service  he  is.  Pr.  Ad, 
543. 

SEC.  12.  When  the  infant  is  over  the  age  of  fourteen 
the  service  is  only  to  be  made-  upon  him,  as  he  may  choose 
his  own  guardian.  Although  there  may  seem  to  be  no 
good  reason  for  requiring  personal  service  upon  a  minor 
under  the  age  of  fourteen,  the  provision  requiring  personal 
service  upon  such  minor,  and  also  upon  his  guardian,  is 
not  the  result  of  a  misprint  or  a  clerical  mistake,  but  the 
deliberate  will  of  the  legislature.  9  Cal.  638. 


Mode  of  Service  in  Actions  against  Insane  Persons. 

SEC.  13.  If  the  action  be  against  a  person  judicially 
declared  to  be  of  unsound  mind  or  incapable  of  conduct 
ing  his  own  affairs,  and  for  whom  a  guardian  has  been 
appointed,  the  summons  shall  be  served  by  delivery  of  a 
copy  to  such  guardian.  Gen.  Laws,  5473. 

Mode  of  Service  in  all  other  Cases. 

SEC.  14.  We  have  already  seen  how  the  summons  shall 
be  served  in  actions  against  corporations  (ante);  against 
minors  under  the  age  of  fourteen  years,  (ante);  against 
persons  judicially  declared  to  be  of  unsound  mind  or  in 
capable  of  conducting  their  own  affairs,  and  for  whom  a 
guardian  has  been  appointed  (ante);  and  in  all  other  cases 
the  summons  shall  be  served  by  delivery  of  a  copy  to  the 
defendant,  personally.  Gen.  Laws,  5473. 

Return  of   Service  of  Summons. 

SEC.  15.  Where  a  defendant  was  sued  by  the  name  of 
John  Cox,  service  was  returned  upon  James  Cox,  and  the 
judgment  was  against  J.  Cox,  it  was  held  to  be  error  un- 


660  JUSTICES'  TREATISE. 

less  there  was  something  in  the  record  to  show  that  the 
person  served  was  the  person  sued.     6  Cal.  415,  416. 

SEC.  16.  Where  a  person  is  sued  by  a  fictitious  name, 
and  the  return  of  the  sheriff  on  the  summons  shows  service 
on  the  defendant  by  his  proper  name,  as  "John  Doe,  alias 
Westfall,"  a  default  being  entered,  judgment  may  be  ren 
dered  against  the  defendant  in  his  true  name,  Westfall, 
without  proof  that  Doe  and  Westfall  are  the  same.  14  Cal. 
117. 

SEC.  17.  A  certificate  of  service  of  a  complaint  signed 
by  "J.  C.  Butler,  under-sheriff,"  is  insufficient  to  prove 
service.  It  is  only  by  virtue  of  his  official  position  that  the 
return  of  the  sheriff  is  conclusive,  and  of  such  the  courts 
must  take  judicial  notice.  But  the  courts  cannot  know  an 
under-sheriff,  and  the  act  and  return  of  a  deputy  is  a  nullity 
unless  done  in  the  name  and  by  the  authority  of  the  sheriff. 
The  defendant  is,  therefore,  not  brought  into  court  by  ser 
vice.  5  Cal.  449;  23  Cal.  401. 

Form  of  Return  of  Service  when  Defendant  is  a  Corporation. 

SEC.  18.  The  following  is  a  form  of  return  of  service 
when  defendant  is  a  corporation,  to  be  indorsed  on  original 
summons : 

I  hereby  certify  that  I  have  served  the  within  summons  by  delivering  a 
true  copy  thereof  to  .....  the  president  for,  if  the  head  of  the  corporation 
is  known  by  any  other  name,  designate  him  by  that  name,  or,  "  the  secre 
tary,"  or,  "the  cashier,"  or,  "the  managing  agent"]  of  the  corporation 
named  within  as  defendant,  personally,  at  ....  township,  in  the  county  of 
. . . . ,  this  ....  day  of  . . . . ,  A.D.  18 . . , 

Fees,  $ 

Constable  ....  township. 

Form  of  Return  of  Service  when  Defendant  is  a  Minor  under  the 
Age  of  Fourteen  Years. 

SEC.  19.  The  following  is  a  form  of  return  when  defend 
ant  is  a  minor  under  the  age  of  fourteen  years,  to  be  in 
dorsed  on  original  summons : 

I  hereby  certify  that  I  have  served  the  within  summons  by  delivering  a 

true  copy  thereof  to  the  within-named  defendant, ,  a  minor  under  the 

age  of  fourteen  years,  personally,  and  also  to  ,  his  father  [or,  "his 

mother,"  or,  "his  guardian,"  or,  if  there  be  none  within  the  county,  then 
the  perspn  having  the  care  or  control  of  said  ,  or  the  person  with  whom 


SEKVICE  OF  SUMMONS.  661 

said  ....  resides,  or  the  person  in  whose  service  said  ....  is,  as  the  case 
may  be],  personally,  at  ....  township,  in  the  county  of  . . . . ,  this  .... 
day  of A.D.  1868  [and  in  case  the  minor  has  no  father,  mother  or  guar 
dian  within  the  county,  then  add:  Said  minor  having  no  father,  mother  or 
guardian  within  the  county  of  ....]. 

Fees,  $ , 

Constable  ....  township, 

Form  of  Return  of  Service  when    Defendant  is  Insane  or  Incom 
petent 

SEC.  20.  The  following  is  a  form  of  return  of  service 
when  the  defendant  is  insane  or  incompetent,  to  be  indorsed 
on  original  summons : 

I  hereby  certify  that  I  have  served  the  within  summons  by  delivering  a 
true  copy  thereof  to  . . . . ,  the  guardian  for  the  within-named  defendant, 
{...,  personally,  at  ....  township,  in  the  county  of  . . . . ,  this  ....  day  of 
....  A.D.  1868. 

Fees,  $ 

Constable  ....  township. 

Form  of  Return  of  Service  in  all  other  Cases. 

SEC.  21.  The  following  is  a  form  of  return  of  service  in 
all  other  cases,  to  be  indorsed  on  summons: 

I  hereby  certify  that  I  have  served  the  within  summons  by  delivering  a 

true  copy  thereof  to  the  within-named  defendant, ,  [or,  to  ....  one  of 

the  within-named  defendants,  if  there  are  several  defendants  and  only  one  has 
been  served,  or  to  . . .  ,  sued  by  the  name  of  . . . . ,  the  within-named  de 
fendant,  if  the  defendant  is  sued  by  a  fictitious  name],  personally,  at  .... 
township,  in  the  county  of  . . . . ,  this  ....  day  of  . . . .,  A.D.  1868. 

Fees,  $ v 

Constable  ....  township. 

Form  of  Return  -when  Defendant  cannot  be  Found. 

SEC.  22.  The  following  is  a  form  of  return  when  defend 
ant  cannot  be  found,  to  be  indorsed  on  original  summons : 

I  hereby  certify  that  I  have  made  diligent  search  for  the  within-named 
defendant, ,  and  he  cannot  be  found  in  the  county  of 


Constable  ....  township. 

Mode  of  Service   when  Defendant  is  out  of   the  State  or  Cannot 

be  Found. 

SEC.  23.     When  the  person  upon  whom  the  service  is  to 
be  made  resides  out  of  the  state  or  has  departed  from  the 


662  JUSTICES'  TREATISE. 

state,  or  cannot  after  due  diligence  be  found  within  the 
state,  or  conceals  himself  to  avoid  the  service  of  summons, 
and  the  fact  shall  appear,  by  affidavit,  to  the  satisfaction 
of  the  justice,  and  it  shall,  in  like  manner,  appear  that  a 
cause  of  action  exists  against  the  defendant  in  respect  to 
whom  the  service  is  to  be  made,  the  justice  shall  grant  an 
order  that  the  service  be  made  by  the  publication  of  the 
summons;  the  order  shall  direct  the  publication  to  be 
made  in  a  newspaper,  to  be  designated  as  most  likely  to 
give  notice  to  the  person  to  be  served,  and  for  such  length 
of  time  as  may  be  deemed  reasonable,  at  least  once  a  week : 
provided,  that  publication  against  a  defendant  residing  out 
of  the  state  or  absent  therefrom  shall  not  be  less  than 
three  months.  The  service  of  summons  shall  be  deemed 
complete  at  the  expiration  of  the  time  prescribed  by  the 
order  of  publication;  the  justice  shall  also  direct  a  copy 
of  the  summons  to  be  forthwith  deposited  in  the  post- 
office,  directed  to  the  person,  to  be  served  at  his  place  of 
residence.  Gen.  Laws,  5474. 

SEC.  24.  Where  service  is  attempted  in  a  mode  different 
from  the  course  of  the  common  law,  the  statute  must  be 
strictly  pursued  to  give  jurisdiction.  12  Cat.  100. 

SEC.  25.  The  affidavit  stated  that  the  "defendant  S. 
was  at  the  time  a  resident  of  the.  first  township  in  the 
county  of  Contra  Costa;  that  he  had  occupied  a  house  on 
a  tract  of  land  claimed  to  be  his  own,  and  which  he  had  cul 
tivated  up'  to  the  commencement  of  the  suit  and  for  a  long 
time  previous;  that  on  the  twenty-second  day  of  October,  the 
day  before  the  commencement  of  the  suit,  he  left  his  resi 
dence,  informing  his  servant  that  he  would  be  back  that 
evening  or  the  next  day;  that  the  summons  in  the  suit 
was  put  in  the  hands  of  a  proper  constable,  who  made  dili- 
.gent  search  and  was  wholly  unable  to  serve  it;  that  S.  had 
not  returned  to  his  residence,  and  that  he  believed  he  con 
cealed  himself  for  the  purpose  of  avoiding  the  service  of 
the  summons,  and  that  the  claim  sued  on  is  a  just  debt." 
This  was  held  to  be  sufficient  to  authorize  the  service  by 
publication,  and  when  publication  made  to  give  the  court 
jurisdiction.  23  Gal.  85;  9  Col.  Ill;  20  Col.  81. 


SEBVICE  OF  SUMMONS.  663 


Form  of  Affidavit  for  Publication  of  Summons. 

SEC.  26.     The  following  is  a  form  of  affidavit  for  publica 
tion  of  summons: 

In  the  justice's  court  of  the township,  in  the  county  of ,  state  of  ... 


plaintiff, 
against 


defendant,  j 

State  of  ,  I  gs 

county  of  ,  J 

,  being  diily  sworn,  says :  That  he  is  the  plaintiff  iu  the  above- 
entitled  action;  that  the  complaint  in  said  action  was  filed  with  the  justice  of 
the  above-named  township,  on  the  ....  day  of  . . . . ,  A.D.  18 . . ,  and  summons 
thereupon  issued;  that  said  action  is  brought  to  recover  the  sum  of  .... 

hundred  dollars  due  and  unpaid  from ,  the  defendant  in  said  action, 

to  said  plaintiff  upon  a  promissory  note  made  by  said  defendant,  and  dated 

at  the  county  of ,  on  the day  of ,  A.D  .18  . . ,  payable  in 

days  to  the  said  plaintiff  with  interest  at  the  rate  of   per  cent,  per 

month  until  paid  [or  state  such  other  cause  of  action  as  may  exist  against 
the  defendant  in  respect  to  whom  the  service  is  to  be  made]. 

That  said  defendant  resides  out  of  this  state,  and  cannot,  after  due  dili 
gence,  be  found  therein  [or,  "that  that  the  said  defendant  has  departed  from 
this  state  and  cannot,  after  due  diligence,  be  found  therein,"  or,  "  conceals 
himself  to  avoid  the  service  of  said  summons,"  as  the  case  maybe],  and 
said  affiant,  in  support  thereof,  states  the  following  facts  and  circumstances : 

That  said  summons,  issued  as  aforesaid,  was  delivered  to  the  constable  of 
said  township,  that  being  the  township  where  the  said  defendant  last  resided 
within  this  state,  with  directions  to  said  constable  to  serve  the  same  upon 
said  defendant;  and  said  constable  has  returned  said  summons  to  said  justice 
with  his  return  thereon  indorsed,  to  the  effect  that  said  defendant  could  not 
be  found  in  his  township. 

That  said  affiant  has  made  diligent  inquiry  to  find  said  defendant,  but  can 
not,  after  due  diligence,  find  him  within  this  state  [here  state  in  detail  the 
acts  constituting  due  diligence  to  find  the  defendant  and  his  place  of  resi 
dence,  and  the  facts  from  which  it  shall  appear  to  the  satisfaction  of  the 
justice  that  the  defendant  resides  out  of  the  state,  or  has  departed  from  the 
state,  or  cannot,  after  due  diligence,  be  found  within  the  state,  or  that  he 
conceals  himself  to  avoid  service  of  summons];  e.  g. 

That  affiant,  for  the  purpose  of  finding  said  defendant  and  ascertaining 
his  place  of  residence,  has  made  due  and  diligent  inquiry  of  and  among  the 
relations,  former  neighbors,  friends,  business  agents  and  correspondents,  of 
the  said  defendant  [as  the  fact  may  be,  stating  the  names  of  the  parties 

inquired  of],  and  is  informed  by ,  the  agent  [or,  "brother,"  or, 

"neighbor"]  of  said  defendant,  residing  in  the  township  of   ....,  in  the 

county  of ,  that  said  defendant  is  not,  and  does  not,  reside  in  this  state, 

but  that  he  is,  and  resides,  out  of  this  state,  and  that  his  present  place  of 
residence  is  at  the  city  of  . . . . ,  in  the  state  of Or, 


664  JUSTICES'  TEEATISE. 

That  the  said  defendant  is  a  resident  of  this  state,  and  until  the  ....  day 

of ,  18 . . ,  resided  in  the  township  of ,  in  the  county  of ;  that  on 

the  day  last  aforesaid  the  said  constable  called  at  said  said  defendant's  house 
with  intent  to  serve  said  summons  upon  him,  and  that  the  wife  of  said 
defendant  stated  that  he  had  not  been  home  for  ....  days,  and  she  did  not 
know  where  he  was ;  that  on  the  next  day  said  constable  called  again  and 
found  the  house  locked  up,  and  on  inquiry  at  the  next  house  was  informed 

by ,  who  resides  there,  that  said  defendant's  wife  had  gone  with 

her  children  into  the  country,  and  had  said  she  should  not  return;  that 
affiant  called  at  said  defendant's  place  of  business  and  found  it  closed,  and 

one ,  who  was  formerly  employed  as  clerk  of  said  defendant,  told 

affiant  that  said  defendant  had  discharged  him days  before,  saying  that 

he  had  failed  and  must  leave  the  state.  Said  affiant  therefore  says  that  said 
defendant  has  departed  from  this  state,  and  cannot,  with  due  diligence,  be 
found  therein  [or,  "  conceals  himself  to  avoid  the  service  of  said  summons," 
or  both].  Or, 

That  the  last  known  place  of  residence  of'  said  defendant  was  within  this 
state,  to  wit :  at  the  township  of  . . . . ,  in  the  county  of  . . . . ,  but  that  he 
removed  thence  on  or  about  the  ....  day  of  . . . . ,  and  his  residence  at  this 
time  cannot,  on  due  inquiry,  be  ascertained;  that  said  affiant  has  diligently 
made  such  inquiry,  and  for  the  purpose  of  ascertaining  his  place  of  residence 
he  has  inquired  of  the  former  neighbors  and  acquaintances  [naming  them] 
of  said  defendant  at  said  township,  and  of  his  father  and  brother,  who 
reside  at  said  township,  and  is  informed  by  them  that  they  are  ignorant  of 
said  defendant's  residence,  but  that  he  is  not,  as  they  believe,  within  this 
state.  [If  the  defendant's  residence  is  known  it  must  be  stated,  or  if  it  can 
be  ascertained  it  must  be  stated.] 

Said  affiant  therefore  says  that  personal  service  of  said  summons  cannot 
be  made  on  said  defendant,  and  prays  for  an  order  that  service  of  the  same 
may  be  made  by  publication  thereof. 


Subscribed  and  sworn  to  before  me,  this day  of ,  A.  D.  18. . 

Justice  of  the  peace. 

Form  of  Order  for  Publication  of  Summons. 
SEC.  27.     The  following  is  a  form  of  order  for  publica 
tion  of  summons : 

In  the  justice's  court  of  the. . .  .township,  in  the  county  of  . . . . ,  state  of  .... 


plaintiff, 
against 


defendant. 

Upon  reading  and  filing  the  affidavit  of the  plaintiff  in  the  above- 
entitled  action  and  it  appearing  to  the  satisfaction  of  me,  one  of  the  justices  of 

the  peace  of  the' above-named  township,  that ,  the  defendant  in  said 

action,  resides  out  of  the  state  and  cannot,  after  due  diligence,  be  found 
therein  [or,  "has  departed  from  the  state  and  cannot,  after  due  diligence, 
be  found  within  the  state,  "or,  "  conceals  himself  to  avoid  the  service  of  the 


SEEVICE  OF  SUMMONS.  665 

summons  in  said  action,"  as  the  case  may  be],  and  it  also  appearing  from 
the  said  affidavit  that  a  cause  of  action  exists  in  said  action  in  favor  of  said 
plaintiff  and  against  said  defendant,  and  that  a  summons  has  been  duly 
issued  out  of  the  above-named  court  in  said  action,  and  that  personal  service 
of  the  same  cannot  be  made  upon  the  said  defendant  for  the  reasons  herein 
before  contained  and  by  the  said  affidavit  made  to  appear.  On  motion  of 

said  plaintiff  [or,  " ,  attorney  for  said  plaintiff"],  it  is  ordered,  that 

the  service  of  the  summons  in  said  action  be  made  upon  said  defendant  by 
the  publication  thereof  in  the  . . . . ,  a  newspaper  published  at  . . . . ,  in  the 
county  of  . . . . ,  hereby  designated  as  the  newspaper  most  likely  to  give  notice  • 
to  said  defendant,  and  that  such  publication  be  made  at  least  once  a  week  for 
three  months  [or  such  other  length  of  time  as  may  be  deemed  reasonable: 
provided,  that  publication  against  a  defendant  residing  out  of  the  state  or  ab 
sent  therefrom  be  not  less  than  three  months]. 

And  it  further  in  like  manner  appearing  to  my  satisfaction  that  the  resi 
dence  of  said  defendant  is  known  to  be  at  ... . ,  in  the  county  of  . . . .,  state 
of  . . . . ,  it  is  ordered,  that  a  copy  of  the  said  summons  be  forthwith  deposited 
in  the  post-office,  postage  prepaid,  directed  to  the  said  defendant  at  his  said 
place  of  residence. 

Dated ,  A.D.  18. 


Justice  of  the  peace. 


Form  of  Affidavit  of  Publication  of  Summons. 

SEC.  28.     The  following  is  a  form  of  affidavit  of  publica 
tion  of  summons : 

In  the  justice's  court  of  the ....  township,  of  the  county  of  . . . . ,  state  of  .... 


plaintiff, 
against 


defendant. 

State  of ,  ) 

county  of J      ' 

. '. ,  of  said  county,  of  being  ....  duly  sworn  ....  says :  That  he  is 

a  white  male  citizen  of  the  United  States-,  over  twenty-one  years  of  age,  and 
is  competent  to  be  a  witness  on  the  trial  of  the  above-entitled  action;  that 
he  is  the  principal  clerk  and  book-keeper  in  the  office  of  the ,  a  newspa 
per  printed  and  published  in  the  said  county;  that  the  summons  of  which 
the  annexed  is  a  printed  copy  [annex  printed  copy  of  summons  to  this  affi 
davit]  was  published  in  said  newspaper  at  least  once  a  week  for  three 
months,  commencing  on  the  ....  day  of  . . . .,  A.D.  18. .,  and  ending  on  the 
....  day  of  . . . .,  A.D.  18.  . 


Subscribed  and  sworn  to  before  me,  this day  of ,  A.D.  18 . . 

» 

Justice  of  the  peace. 

84 


666 


JUSTICES'  TREATISE. 


Form  of  Affidavit  of  Deposit  of  Summons  in  the  Post-office. 

SEC.  29.     The  following  is  a  form  of  affidavit  of  deposit 
of  summons  in  the  post-office  : 

In  the  justice's  court  of  the township,  in  the  county  of  .  . .  . ,  state  of 


plaintiff, 
against 


State  of 


defendant.  _ 

county  of j  83- 

,  of  said  county,  being  ....  duly  sworn, ....  says :  That  he  is  a 

white  male  citizen  of  the  United  States,  over  twenty-one  years  of  age,  and  is 
competent  to  be  a  witness  on  the  trial  of  the  above-entitled  action ;  that  on 
the  ....  day  of,  A.D.  18. .,  the  complaint  in  the  said  action  was  filed,  and 
afterwards  an  order  was  made  by  the  court  for  the  publication  of  the  sum 
mons  in  said  action,  and  also  a  further  order  that  a  copy  of  said  summons 
should  be  deposited  in  the  post-office  and  directed  to  the  defendant  in  said 
action  at  his  place  of  residence,  to  wit :  at  . . . ,  in  the  county  of  . . . . ,  state 
of  .  . . . ;  that  afterwards,  to  wit:  on  the  ...  day  of  .  . . .,  A.D.  18. .,  and  in 
pursuance  of  the  said  order  of  the  court  in  the  premises  heretofore  made,  he 
deposited  in  the  post-office  at  . . . . ,  a  copy  of  the  said  summons  directed  to 

,  the  said  defendant,  at in  the  county  of  . . . . ,  state  of  . . . . , 

the  place  of  his  residence  as  aforesaid,  and  paid  the  postage  thereon  in  ad 
vance.  

Subscribed  and  sworn  to  before  me,  this day  of ,  A.D.  18 . . 


Justice  of  the  peace. 


CHAPTER    LXXXI. 
SHERIFFS  AND  CONSTABLES. 


SECS. 

STATUTES  CHEATING  THE  OFFICE 
AND  DEFINING  THE  DUTIES 
OF  SHERIFF  AND  CONSTA 
BLES  1-2 

THE  OFFICE  OF 3-8 

DUTIES,  GENERALLY 9-25 

MUST  BE  DILIGENT 26-30 

RESPONSIBLE  FOR  DEPUTY 31-36 

SEIZURE  OF  PROPERTY,  OR  LEVY 

BY 37-73 

INDEMNITY.  .  74-87 


SECS. 

KEEPING  OF  GOODS 88-89 

CONFLICTING  CLAIMS 90-92 

WRITS  OF  RESTITUTION 93-99 

SALE  BY 100-111 

RETURN 112-123 

DAMAGES  RECOVERABLE  OF.  ...  124-128 

NOS. 

FORMS  IN  CRIMINAL  CASES 1-15 

FORMS  IN  CIVIL  CASES 16-  37 

FORMS  BY  CONSTABLE  .  .  , .   38-  45 


Statutes  Creating  the    Office    and  Defining   the  Duties  of  Sheriffs 
and  Constables. 

SECTION  1.     All  county  officers  in  every  county  o'f  the 


SHERIFFS  AND  CONSTABLES.  667 

state,  and  officers  of  a  subdivision  of  a  county,  other  than 
judicial  officers  and  county  supervisors,  shall  be  elected  by 
,  the  qualified  electors  of  their  respective  counties  or  subdi 
visions  of  a  county  at  the  general  election  in  the  year  one 
thousand  eight  hundred  and  sixty-three,  and  of  every  second 
year  thereafter,  and  shall  hold  their  offices  for  the  term  of 
tw,p  years  from  and  after  the  first  Monday  of  March  subse 
quent  to  their  election,  and  until  their  successors  are  elect 
ed  and  qualified,  except  constables,  who  shall  hold  their 
offices  for  the  term  of  two  years  from  and  after  the  first  day 
of  January  next  after  their  election,  and  until  their  succes 
sors  are  elected  and  qualified:  provided,  that  the  present 
officers  mentioned  in  the  preceding  part  of  this  section  shall 
continue  in  office  until  the  first  Monday  in  March,  one 
thousand  eight  hundred  and  sixty-four,  except  constables, 
who  shall  continue  in  office  until  the  first  day  of  January, 
one  thousand  eight  hundred  snd  sixty-four. 

SEC.  2.  An  act  concerning  sheriffs,  passed  April  29th, 
1851,  provides  as  follows :  1st.  There  shall  be  a  sheriff  in 
each  of  the  counties  of  this  state,  to  be  elected  in  the  man 
ner  prescribed  by  law.  2d.  Before  entering  upon  the  dis 
charge  of  his  duties,  each  sheriff  shall  take  the  oath  of 
office  and  give  a  bond  to  the  state  in  the  form  prescribed  by 
the  "act  concerning  the  official  bonds  of  officers,"  condi 
tional  for  the  faithful  performance  of  the  duties  of  his  office. 
The  penalty  of  the  bond  to  be  given  shall  be  as  follows :  In 
the  counties  of  San  Francisco  and  Sacramento  the  sum  of 
one  hundred  thousand  dollars;  in  the  counties  of  Santa 
Clara,  El  Dorado  and  Yuba,  the  sum  of  fifty  thousand  dol 
lars;  in  all  other  counties  except  San  Luis  Obispo  and 
Santa  Barbara,  the  sum  of  twenty-five  thousand  dollars; 
and  in  San  Luis  Obispo  and  Santa  Barbara  counties,  twelve 
thousand  dollars.  3d.  The  sheriff  shall  be  a  conservator 
of  the  peace  in  his  county.  4th.  It  shall  be  the  duty  of 
the  sheriff  within  his  county: 

First — To  arrest  and  take  before  the  nearest  magistrate 
for  examination  all  persons  who  commit  or  attempt  to  com 
mit  a  public  offense  in  his  presence,  or  who  have  committed  . 
a  public  offense. 
Second — To  prevent  and  suppress  all  arrays,  breaches  of 


668  JUSTICES'  TREATISE. 

the  peace,  riots  and  insurrections  which  may  come  to  his 
knowledge. 

Third — To  execute  the  process,  writs,  warrants  and  order 
of  the  courts  of  justice,  or  of  judicial  officers,  when  deliv 
ered  to  him  for  that  purpose. 

Fourth — To  attend  in  person  or  by  deputy,  all  courts  ex 
cept  justices',  probate  and  recorders'  courts,  at  their  re 
spective  terms,  held  within  his  county,  and  to  obey  their 
lawful  orders  and  directions. 

Fifth — To  serve  at  the  request  of  a  party  to  any  action  or 
proceeding,  notices  and  papers  therein. 

Sixth — In  the  execution  of  these  duties,  to  command  the 
aid  of  as  many  male  inhabitants  of  his  county  as  he  may 
think  proper  and  necessary. 

5th.  When  any  process,  writ  or  order,  shall  be  delivered 
to  the  sheriff  to  be  executed,  he  shall  endorse  upon  it  the 
year,  month,  day  and  hour,  of  its  reception,  and  shall  give 
to  the  person  delivering  it,  if  required,  on  payment  of  his 
fee,  a  written  memorandum  signed  by  him  specifying  the 
names  of  the  parties  in  the  process,  writ  or  order,  the  gen 
eral  nature  thereof,  and  the  time  it  was  received.  He  shall 
also  deliver  to  the  party  served  a  copy  thereof,  without 
charge  to  such  party. 

6th.  A  sheriff  to  whom  any  process,  writ,  order  or  paper, 
shall  be  delivered,  shall  execute  it  with  diligence  according 
to  its  command  or  as  required  by  law,  and  shall  return  it 
without  delay  to  the  proper  court  or  officer  with  his  certifi 
cate  indorsed  thereon  of  the  manner  of  its  service  or  execu 
tion,  or  if  not  served  or  executed,  the  reasons  of  his  failure. 
For  a  failure  to  do  so  he  shall  be  liable  in  an  action  to  the 
party  aggrieved  for  the  sum  of  two  hundred  dollars  and  for 
all  damages  sustained  by  him. 

7th.  "When  any  process,  writ,  order  or  paper,  is  to  be 
returned  to  a  court,  officer  or  person,  out  of  the  county,  the 
sheriff  may  forward  it  by  mail,  and  on  proof  that  it  was 
mailed  in  season,  properly  directed,  he  shall  be  discharged 
from  liability  for  a  failure  to  return  it. 

8th.  If  the  sheriff  to  whom  a  writ  of  execution  is  deliv 
ered  shall  neglect  or  refuse,  after  being  required  by  the 
creditor  or  his  attorney,  to  levy  upon  or  sell  any  property 


SHERIFFS  AND  CONSTABLES.  669 

of  the  party  charged  in  the  writ  which  is  liable  to  be  levied 
upon  and  sold,  he  shall  be  liable  on  his  official  bond  to  the 
creditor  for  the  value  of  such  property. 

9th.  If  a  sheriff  shall  neglect  or  refuse  to  pay  over,  on 
demand,  to  the  person  entitled,  any  money  which  may  come 
into  his  hands  by  virtue  of  his  office,  after  deducting  his 
legal  fees,  the  amount  thereof,  with  twenty-five  per  cent, 
damages  and  interest,  at  the  rate  of  ten  per  cent,  per  month 
from  the  time  of  demand,  may  be  recovered  by  such  person 
from  him  and  the  sureties  on  his  official  bond,  on  applica 
tion,  upon  five  days'  notice  to  the  court  in  which  the  action 
is  brought  or  the  judge  thereof  in  vacation. 

10th.  The  sheriff  shall  keep  an  office  at  the  county  seat 
of  his  county.  • 

llth.  The  sheriff's  office  shall  be  kept  open  on  all  days 
except  Sundays,  between  the  hours  of  nine  and  twelve  in 
the  forenoon  and  between  the  hours  of  two  and  five  in  the 
afternoon. 

12th.  Service  of  a  paper  upon  the  sheriff  may  be  made 
by  delivering  it  to  himself  in  person  or  by  delivering  it  to 
the  under  sheriff  or  to  one  of  his  deputies  or  to  a  person 
belonging  to  and  in  the  office  during  office  hours,  or  if  no 
such  person  be  there,  by  leaving  it  in  a  conspicuous  place 
in  the  office. 

13th.  Each  of  the  present  sheriffs,  within  thirty  days  after 
the  passage  of  this  act,  and  each  sheriff  hereafter  elected, 
immediately  after  entering  upon  the  duties  of  his  office, 
shall  appoint  an  under  sheriff  to  hold  the  office  during  his 
pleasure,  and  shall  make  a  similar  appointment  as  often  as 
a  vacancy  occurs  in  the  office  of  under  sheriff.  He  may 
also  appoint  as  many  deputies  as  he  thinks  proper,  to  hold 
their  offices  during  his  pleasure. 

14th.  The  appointment  of  an  under  sheriff  and  of  deputy 
sheriff  and  also  the  nomination  of  any  such  appointment, 
shall  be  in  writing  and  filed  in  the  office  of  the  county 
clerk.  The  sheriff  may  require  of  each  person  appointed 
under  sheriff  and  of  each  of  his  deputies,  a  bond,  with 
sureties,  for  the  faithful  performance  of  his  duties,  but  the 
sheriff  shall  be  responsible  for  the  official  acts  of  the  under 
sheriff  and  his  deputies.  Before  entering  upon  their  re- 


670  JUSTICES'  TEEATISE. 

spective  duties,  the  under  sheriff  and  each  of  the  deputies 
shall  take  the  oath  of  office,  which  shall  be  indorsed  on 
their  respective  appointments. 

15th.  During  the  absence  of  the  sheriff  from  his  county, 
or  when  the  sheriff,  from  sickness  or  any  other  cause,  is  un 
able  to  discharge  the  duties  of  his  office,  the  under  sheriff 
shall  exercise  the  powers  and  perform  the  duties  of  that 
officer,  and  at  other  times  shall  perform  such  services  rela 
ting  to  the  duties  of  the  sheriff  as  may  be  required  of  him 
by  that  officer.  A  deputy  sheriff  shall  execute  all  orders, 
writs  and  processes,  of  a  court  or  judicial  officer,  and  may 
perform  every  act  incidental  thereto. 

16th.  The  neglect  or  misconduct  in  office  of  the  under 
sheriff  or  any  deputy,  shall  be  a  breach  of  the  official  bond 
of  the  sheriff  by  whom  they  are  appointed. 

17th.  The  county  jail  shall  be  kept  by  the  sheriff  and 
used  as  a  prison : 

First — For  the  detention  of  persons  committed  as  wit 
nesses  in  a  criminal  action. 

Second—  For  the  detention  of  persons  committed  for  trial 
for  a  public  offense. 

Third — For  the  confinement  of  persons  committed  upon 
civil  process. 

Fourth — For  the  confinement  of  persons  sentenced  to  con 
finement  therein,  upon  conviction  for  a  public  offense  or 
for  examination,  charged  with  having  committed  a  public 
offense. 

18th.  The  sheriff  may  appoint  a  keeper  of  the  county  jail, 
for 'whose  acts,  as  such,  he  shall  be  responsible. 

19th.  The  court  of  sessions  of  the  county  shall  cause  a 
county  jail  to  be  erected  at  the  county  seat,  in  case  such 
jail  has  not  been  already  erected,  or  shall  provide  some 
suitable  place  for  the  safe  keeping  of  prisoners,  which 
place,  until  the  erection  of  a  jail,  is  considered  in  this  act 
as  the  county  jail.  The  county  jail  or  the  place  provided 
as  such,  shall  contain  a  sufficient  number  of  rooms : 

First — For  the  confinement  of  persons  committed  for 
trial  in  criminal  actions,  separate  and  distinct  from  pris 
oners  under  sentence. 

Second — For  the  confinement  of  prisoners  under  sen 
tence. 


SHERIFFS  AND  CONSTABLES.  671 

Third — For  the  confinement  of  persons  committed  on 
civil  process  or  as  witnesses  in  criminal  actions,  separate 
from  those  mentioned  in  the  last  two  subdivisions. 

20th.  Persons  committed  on  criminal  process  and  de 
tained  for  trial,  persons  convicted  and  under  sentence,  and 
persons  committed  upon  civil  process,  shall  on  no  pretense 
whatever  be  kept  or  put  in  the  same  room,  nor  shall  male 
and  female  prisoners  (except  husband  and  wife)  be  kept  or 
put  in  the  same  room. 

21st.  When  there  is  no  jail  in  the  county,  or  when  the 
jail  becomes  unfit  or  unsafe  for  the  confinement  of  prison 
ers,  the  county  judge  may,  by  a  written  appointment,  filed 
with  the  county  clerk,  designate  the  jail  of  a  contiguous 
county  for  the  confinement  of  the  prisoners  of  his  county 
or  of  any  of  them,  and  may  at  any  time  modify  or  annul 
the  appointment. 

22d.  A  copy  of  the  appointment  certified  by  the  county 
clerk  shall  be  served  on  the  sheriff  and  keeper  of  the  jail 
designated,  who  shall  receive  in  his  jail  and  safely  keep  all 
prisoners  authorized  to  be  confined  therein  pursuant  to 
the  last  section,  and  who  shall  be  responsible  for  the  safe 
keeping  of  the  persons  so  committed  in  the  same  manner 
and  to  the  same  extent  as  if  he  was  sheriff  of  the  county 
for  whose  use  his  jail  is  designated,  and  with  respect  to  the 
persons  so  committed  he  shall  be  deemed  the  sheriff  of  the 
county  from  which  they  were  removed. 

23d.  When  a  jail  shall  be  erected  in  the  county  for 
whose  use  the  designation  was  made,  or  its  jail  shall  be 
rendered  fit  and  safe  for  the  confinement  of  prisoners,  the 
county  judge  of  that  county  shall,  by  a  written  revocation, 
filed  with  the  county  clerk  thereof,  declare  that  the  neces 
sity  for  the  designation  has  ceased  and  that  it  is  revoked. 

24th.  The  county  clerk  shall  immediately  serve  a  copy 
of  the  revocation  upon  the  sheriff  of  his  county,  who  shall 
thereupon  remove  his  prisoners  to  his  own  jail. 

2oth.  When  a  county  jail  or  a  building  contiguous  to  it 
is  on  fire,  and  there  is  reason  to  apprehend  that  the  pris 
oners  may  be  injured  or  endangered,  the  sheriff  or  jailor 
shall  remove  them  to  a  safe  and  convenient  place  and  there 
confine  them  so  long  as  it  may  be  necessary  to  avoid  the 
clanger. 


672  JUSTICES'  TREATISE. 

26th.  When  a  pestilence  or  contagious  disease  breaks 
out  in  or  near  to  a  jail  and  the  physician  thereof  certifies 
that  it  is  liable  to  endanger  the  health  of  the  prisoners,  the 
county  judge  may,  by  a  written  appointment,  designate  a 
safe  and  convenient  place  in  the  county,  or  the  jail  of  a 
contiguous  county,  as  the  place  of  their  confinement.  The 
appointment  shall  be  filed  in  the  office  of  the  county  clerk, 
and  shall  authorize  the  sheriff  to  remove  the* prisoners  to 
the  place  or  jail  designated,  and  there  confine  them  until 
they  can  be  safely  returned  to  the  jail  from  which  they 
were  taken. 

27th.  The  court  of  sessions  of  each  county  shall,  from 
time  to  time,  appoint  a  physician  to  the  jail  of  the  county. 

28th.  A  sheriff  or  jailor  upon  whom  a  paper  in  a  judicial 
proceeding  directed  to  a  prisoner  in  his  custody  is  served, 
shall  forthwith  deliver  it  to  the  prisoner  with  a  note 
thereon  of  the  time  of  its  service.  For  a  neglect  to  do  so 
he  shall  be  liable  to  the  prisoner*  for  all  damages  occa 
sioned  thereby,  and  for  a  willful  omission  in  this  respect 
shall  be  deemed  guilty  of  a  misdemeanor. 

29th.  The  sheriff,  when  he  shall  deem  it  necessary,  may, 
with  the  assent  in  writing  of  the  county  judge,  or  in  a  city 
of  the  mayor  thereof,  employ  a  temporary  guard  for  the 
protection  of  the  county  jail  or  for  the  safe  keeping  of 
prisoners,  the  expenses  of  which  shall  be  a  county  charge. 

30th.  The  sheriff  shall  receive  all  persons  committed  to 
jail  by  any  competent  authority,  and  shall  provide  them 
with  necessary  food,  clothing  and  bedding,  for  which  he 
shall  be  allowed  a  reasonable  compensation  to  be  deter 
mined  by  the  court  of  sessions  or  board  of  supervisors, 
and  except  as  provided  in  the  next  section,  paid  out  of  the 
county  treasury. 

31st.  Whenever  a  person  is  committed  upon  process  in  a 
civil  action  or  proceeding,  except  when  the  people  of  this 
state  are  a  party  thereto,  the  sheriff  shall  not  be  bound  to 
receive  such  person,  unless  security  be  given  on  the  part 
of  the  party  at  whose  instance  the  process  is  issued,  by  a 
deposit  of  money  to  meet  the  expenses  for  him  of  necessary 
food,  clothing  and  bedding,  or  to  detain  such  person  any 
longer  than  these  expenses  are  provided  for.  This  section 


SHERIFFS  AND  CONSTABLES.  673 

shall  not  apply,  however,  to  cases  where  a  party  is  com 
mitted  as  a  punishment  for  disobedience  to  the  mandates, 
process,  writs  or  orders,  of  the  court. 

32d.  A  prisoner  committed  to  the  county  jail  for  trial 
or  for  examination  or  upon  conviction  for  a  public  offense, 
shall  be  actually  confined  in  the  jail  until  he  is  legally  dis 
charged,  and  if  he  be  permitted  to  go  at  large  out  of  the 
jail  except  by  virtue  of  a  legal  order  or  process,  it  shall  be 
an  escape,  and  the  sheriff  or  jailor  permitting  it  shall  be 
deemed  guilty  of  a  misdemeanor,  and  may  be  fined  in  any 
sum  not  exceeding  twenty  thousand  dollars. 

33d.  A  sheriff  who  suffers  the  escape  of  a  person  ar 
rested  in  a  civil  action,  without  the  consent  or  connivance 
of  the  party  in  whose  behalf  the  arrest  or  imprisonment 
was  made,  shall  be  liable  as  follows : 

First — When  the  arrest  is  upon  an  order  to  hold  to  bail 
or  upon  a  surrender  in  exoneration  of  bail  before  judgment, 
he  shall  be  liable  to  the  plaintiff  as  bail. 

Second — When  the  arrest  is  on  an  execution  or  commit 
ment  to  enforce  the  payment  of  money,  he  shall  be  liable  for 
the  amount  expressed  in  the  execution  or  commitment. 

Third — When  4he  arrest  is  on  an  execution  or  commit 
ment,  other  than  to  enforce  the  payment  of  money,  he  shall 
be  liabfe  for  the  actual  damages  sustained. 

Fourth — The  sheriff,  upon  being  sued  for  damages  for  an 
escape,  may  exhibit  proofs  in  mitigation  and  exculpation. 

34th.  The  sheriff  shall  be  liable  for  a  rescue  of  a  person 
arrested  in  a  civil  action  equally  as  for  an  escape,  provided 
he  may  show  circumstances  in  exculpation. 

35th.  An  action  shall  not,  however,  be  maintained 
against  the  sheriff  for  a  rescue  or  for  an  escape  of  a  per 
son  arrested  upon  an  execution  or  commitment,  if,  after 
his  rescue  or  escape  or  before  the  commencement  of  the 
action,  the  prisoner  return  to  the  jail  or  be  retaken  by  the 
sheriff. 

36th.  When  a  new  sheriff  is  elected  and  has  qualified  and 

given  the  necessary  security  required  by  law,  the  county 

clerk  shall  give  a  certificate  of  that  fact  under  his  seal  of 

office,  upon  the  service  of  which  on  the  former  sheriff  his 

85 


674  JUSTICES'  TKEATISE. 

powers  shall  cease,  except  as  otherwise  provided  in  this 
act. 

37th.  Within  three  days  after  the  service  of  the  certifi 
cate  upon  the  former  sheriff  he  shall  deliver  to  his  suc 
cessor  : 

First — The  jail  of  the  county  with  its  appurtenances  and 
the  property  of  the  county  therein. 

Second — The  prisoners  then  confined  in  the  county  jail. 

Ihird—  The  process,  orders  and  other  papers,  in  his  cus 
tody,  authorizing  or  relating  to  the  confinement  of  the 
prisoners. 

Fourth — All  process  and  orders  for  the  arrest  of  a  party 
and  all  papers  relating  to  the  summoning  of  a  grand  or  trial 
jury  which  have  not  been  fully  executed. 

Fifth — All  executions,  attachments  and  final  process,  ex 
cept  those  which  he  has  executed  or  has  begun  to  execute, 
by  the  collection  of  money  or  a  levy  on  property. 

38th.  He  shall  also  at  the  same  time  deliver  to  the  new 
sheriff  a  written  transfer  of  the  property,  process,  papers, 
and  prisoners  delivered,  specifying  the  process  or  order  by 
which  each  prisoner  was  committed  and  detained.  The 
new  sheriff  shall  thereupon  acknowledge  in  writing  upon  a 
duplicate  of  the  transfer,  the  receipt  of  the  property,  pro 
cess,  papers  and  prisoners,  therein  specified. 

39th.  Notwithstanding  the  election  and  qualification  of  a 
new  sheriff,  the  former  sheriff  shall  return  all  process  and 
orders  before  and  after  judgment  which  he  has  fully  exe 
cuted,  and  shall  complete  the  execution  of  all  final  process 
which  he  has  begun  to  execute. 

40th.  If  the  former  sheriff  neglect  or  refuse  to  deliver  to 
his  successor  the  jail  process,  papers  and  prisoners,  in  his 
charge,  the  new  sheriff  may,  notwithstanding,  take  posses 
sion  of  the  jail  and  of  the  prisoners  confined  therein,  and 
the  county  court  or  county  judge  may  upon  application 
order  the  delivery  of  the  process  and  papers. 

41st.  The  sheriff  shall  receive  and  keep  in  the  county  jail 
any  prisoner  who  shall  be  committed  thereto  by  process  or 
order  issued  under  the  authority  of  the  United  States  until 
he  be  discharged  according  to  law,  as  if  he  had  been  com 
mitted  under  process  issued  under  the  authority  of  this 


SHERIFFS  AND' CONSTABLES.  675 

state:  provided,  provisions  be  made  by  the  United  States 
for  the  support  of  such  prisoner. 

42d.  A  sheriff  or  jailor  to  whose  custody  a  prisoner  is 
committed  as  provided  in  the  last  section,  shall  be  answer 
able  for  his  safe  keeping  in  the  courts  of  the  United  States, 
according  to  the  laws  thereof. 

43d.  When  an  officer  finds  or  has  reason  to  apprehend 
that  resistance  will  be  made  to  the  execution  of  process  de 
livered  to  him  for  service,  he  may  command  as  many  male 
inhabitants  as  he  may  think  proper,  and  any  military  com 
pany  or  companies  in  the  county  armed  and  equipped,  to 
assist  him  in  overcoming  the  resistance,  and  if  necessary  in 
seizing,  arresting,  and  confining,  the  resisters  and  their 
aiders  and  abettors  to  be  punished  according  to  law. 

44th.  Every  able-bodied  male  person  over  the  age  of 
eighteen  and  under  the  age  of  sixty,  commanded  by  an  offi 
cer  to  assist  him  in  the  execution  of  process  as  provided  in 
the  preceding  section,  who  without  lawful  cause  refuses  or 
neglects  to  obey  the  command,  may  be  fined  by  the  court 
upon  proof  there'of  in  a  sum  not  exceeding  two  hundred 
dollars. 

45th.  No  direction  or  authority  by  a  party  or  his  attor 
ney  to  a  sheriff,  or  to  an  under  or  deputy  sheriff,  in  re 
spect  to  the  execution  of  process  or  return  thereof  or  to  any 
act  or  omission  relating  thereto,  shall  be  available  to  dis 
charge  or  excuse  the  sheriff  from  a  liability  for  neglect  or 
misconduct,  unless  it  be  contained  in  a  writing  signed  by 
the  party  to  be  charged  or  affected  thereby  or  his  attorney. 

46th.  When  the  sheriff  is  committed  to  the  custody  of 
another  sheriff  or  of  a  coroner,  under  an  execution  or  com 
mitment  for  not  paying  over  money  received  by  him  by 
virtue  of  his  office,  and  remains  committed  for  sixty  days, 
his  office  shall  be  declared  vacant. 

47th.  When  the  sheriff  or  other  officer  is  legally  required 
to  perform  a  service  in  behalf  of  the  people  of  this  state 
which  is  not  chargeable  to  this  county  or  a  private  person, 
his  account  thereof  shall  be  audited  by  the  comptroller  of 
state,  and  shall  be  paid  by  the  treasurer  of  state. 

48th.  A  sheriff  or  other  ministerial  officer  shall  be  justi 
fied  in  the  execution  of  all  process  and  orders  regular  on 


676 


JUSTICES    TREATISE. 


their  face,  and  issued  by  competent  authority,  whatever 
may  be  the  defect  in  the  proceedings  upon  which  they 
were  issued. 

49th.  The  officer  executing  a  process,  warrant  or  order 
of  any  kind,  shall  be  bound  then  and  at  all  times  subse 
quent  so  long  as  he  retains  it  upon  request  to  show  same, 
with  all  papers  attached,  to  any  person  interested  therein. 

50th.  The  sheriff  or  deputy  in  attendance  upon  court 
shall  act  as  the  crier  thereof  to  call  the  parties-  and  wit 
nesses  and  all  other  persons  bound  to  appear  at  the  court, 
and  make  proclamation  of  the  opening  and  adjournment  of 
the  court  and  of  any  other  matter  under  its  direction. 

51st.  A  sheriff,  under  or  deputy  sheriff,  is  prohibited 
during  his  continuance  in  office  from  acting  or  having  a 
partner  who  acts  as  an  attorney  or  counsellor. 

52d.  Every  sheriff  shall  be  liable  to  the  party  injured 
on  his  official  bond  for  neglect  or  mal-performance  of  any 
duty  imposed  upon  him  by  law. 

53d.  Every  sheriff  who  is  guilty  of  willful  negligence  in 
the  discharge  of  his  duties,  or  who,  in  the  execution  or 
under  color  of  his  office,  is  guilty  of  any  oppression  or  ex 
tortion,  shall,  upon  conviction  thereof,  be  fined  in  a  sum 
not  exceeding  five  thousand  dollars,  and  may  be  removed 
from  office. 

54th.  When  the  sheriff  is  a  party  to  an  action  or  special 
proceeding,  the  process  and  orders  therein  which  it  would 
otherwise  be  the  duty  of  the  sheriff  to  execute,  shall,  ex 
cept  when  otherwise  provided  by  this  act,  be  executed  by 
the  coroner  of  the  county. 

55th.  In  case  of  a  vacancy  in  the  office  of  sheriff,  the 
powers  and  duty  of  sheriff  shall  devolve  upon  the  coroner 
of  the  county,  and  be  executed  by  him  until  a  new  sheriff 
be  appointed,  elected  and  qualified,  and  has  given  security 
to  be  approved  as  required  by  ^aw. 

56th.  Whenever  a  coroner  acts  as  a  sheriff,  he  shall  be 
invested  with  the  powers,  duties  and  responsibilities,  of  the 
sheriff,  and  shall  be  entitled  to  the  same  fees  for  similar 
services. 

57th.  Process  and  orders  in  an  action  or  proceeding  may 
be  executed  by  a  person  residing  in  the  county  designated 


SHEBIFFS  AND  CONSTABLES.  677 

by  the  court,  the  judge  thereof  or  a  county  judge,  and  de 
nominated  an  elisor,  in  the  following  cases : 

First — When  the  sheriff  and  coroner  are  both  parties. 

Second — When  either  of  these  officers  is  a  party  and  the 
process  of  orders  are  against  the  other  for  a  disobedience 
of  an  order  or  process  therein. 

Third — When  either  of  these  officers  is  a  party  and  there 
is  a  vacancy  in  the  office  of  the  other,  or  when  it  shall  be 
made  to  appear  by  affidavit  to  the  satisfaction  of  the  court 
in  which  the  suit  or  proceeding  is  pending,  or  the  judge 
thereof,  that  either  of  said  officers,  by  reason  of  any  bias, 
prejudice  or  other  cause,  would  not  act  promptly  and  im 
partially. 

58th.  When  process  is  delivered  to  an  elisor,  he  shall 
execute  it  in  the  same  manner  as  the  sheriff  is  required  to 
execute  similar  process  in  other  cases. 

59th.  If  the  sheriff  on  being  arrested  by  a  coroner,  or 
if  a  sheriff  or  coroner  pn  being  arrested  by  an  elisor,  or  if 
another  person  on  being  arrested  in  an  action  in  which 
both  the  sheriff  and  coroner  are  plaintiffs  upon  an  order  of 
arrest  in  a  civil  action,  neglect  to  give  bail  or  make  a  de 
posit  of  money  instead  thereof,  or  if  he  be  arrested  on 
execution  against  his  body  or  on  a  warrant  of  attachment, 
he  shall  be  confined  in  a  house  other  than  the  house  of  the 
sheriff  or  the  county  jail,  in  the  same  manner  as  the  sheriff 
is  required  to  confine  a  prisoner  in  the  county  jail;  the 
house  in  which  he  is  thus  confined  shall  thereupon  become 
for  that  purpose  the  county  jail. 

60th.  An  elisor  appointed  to  execute  process  and  orders 
in  the  cases  mentioned  in  this  act,  shall  be  invested  with 
the  powers,  duties  and  responsibilities,  of  the  sheriff  in  the 
execution  of  the  process  or  orders,  and  in  every  matter  in 
cidental  thereto. 

61st.  The  act  entitled  "  an  act  to  prescribe  the  duties  of 
sheriff,"  passed  April  17th,  1850,  and  the  act  entitled  "an 
act  concerning  jails  and  jailors,"  passed  March  27th,  1850, 
are  hereby  repealed;  but  nothing  in  this  section  shall  be 
deemed  to  affect  any  action  already  commenced  or  any 
proceeding  already  taken  under  said  acts  or  any  responsi 
bilities  incurred  thereunder. 


678  JUSTICES'  TREATISE. 

62d.  This  act  shall  take  effect  on  the  first  day  of  July 
next. 

The   Office  of. 

SEC.  3.  When  it  appeared  that  the  claimant  of  the  office 
had  acted  as  sheriff,  that  being  the  office  in  controversy, 
that  fact,  together  with  the  certificate  of  election,  would 
raise  the  presumption  that  he  had  executed  his  bond  and 
taken  the  oath  of  office.  People  vs.  Clmgan,  5  Cal.  390. 

SEC.  4.  A  sheriff  is  a  ministerial  or  executive  officer 
solely,  but  there  is  no  constitutional  prohibition  against  his 
exercising  the  duties  of  tax  collector,  where  the  law  con 
solidating  the  two  offices  was  passed  prior  to  his  election. 
Merrill  vs.  Gorham,  6  Cal.  43;  People  vs.  Squires,  14  Cal. 
15.  Strictly  speaking,  there  can  be  no  vacancy  in  the  office 
of  sheriff  caused  by  the  death,  removal  or  resignation,  of 
the  incumbent,  for,  upon  the  happening  of  such  an  event, 
the  coroner  by  operation  of  law  becomes  sheriff.  People 
vs.  Phenix,  6  Cal.  93. 

SEC.  5.  The  coroner  only  holds  the  office  of  sheriff  ex 
officio  until  the  appointment  of  a  new  sheriff  by  the  board 
of  supervisors.  6  Cal.  93. 

SEC.  6.  Though  the  appointment  of  a  sheriff  by  a  county 
judge  be  void,  yet  the  acts  of  such  sheriff  as  a  de  facto 
officer  are  good.  People  vs.  Roberts,  6  Cal.  215. 

SEC.  7.  In  action  by  one  claiming  to  have  been  elected 
sheriff  against  his  predecessor,  to  compel  a  surrender  of 
the  books,  papers,  etc.,  belonging  to  the  office,  plaintiff 
must  show  prima  facie  that  a  vacancy  existed  in  the  office 
and  that  he  was  elected  to  fill  it.  Doane  vs.  Scanned,  1  Cal. 
395. 

SEC.  8.  The  defendant  being  elected  sheriff  of  the 
county  of  San  Francisco  in  September,  1855,  on  July  26th, 
1856,  and  after  the  consolidation  act  went  into  effect,  one 
of  the  defendant's  sureties  applied  to  the  county  judge  to 
be  released  from  further  liability;  on  the  6th  of  August  the 
judge  declared  the  office  vacant  by  reason  of  the  failure  of 
defendant  to  file  new  bonds:  Held,  that  the  county  judge 
had  no  jurisdiction,  the  new  law  then  in  force  vesting  the 
power  of  approving  the  bonds  of  such  officer  in  the  county 


SHEEIFFS  AND  CONSTABLES.  679 

judge,  auditor  and  president,  of  the  board  of  supervisors. 
People  vs.  Scannell,  7  Cal.  438. 

Duties,  Generally. 

SEC.  9.  The  sheriff  has  a  right  to  enter  into  the  premises 
of  the  defendant  to  search  for  his  goods  if  he  can  do  so 
without  breaking  an  outer  door  of  the  house  (Semaynes  case, 
5  Co.  92),  nor  can  a  window  be  broken  for  that  purpose. 
Cooke's  case,  "W.  Jones,  429.  He  may  enter  the  house,  if  it 
be  open,  and  being  once  lawfully  entered,  he  may  break 
open  an  inner  door  or  chest  without  even  a  request  to  open 
them;  though,  in  general,  it  is  more  prudent  to  make  such 
request  for  the  purpose  of  seizing  the  goods  of  the  defend 
ant.  He  may  break  an  outer  door  of  a  barn  (1  Sid.  186) 
or  of  a  store  not  connected  with  the  dwelling  house  and 
forming  no  part  of  the  curtilage.  Hagerty  vs.  Wilbe,  '16 
Johns.  287.  The  sheriff  is  also  authorized  to  enter  the 
house  of  a  stranger  for  the  purpose  of  executing  his  writ, 
provided  the  defendant's  goods  are  there,  but  his  entrance 
will  be  justifiable  only  on  the  event  of  the  goods  being 
there,  for  if  he  should  be  mistaken  in  this  respect'  he  will 
be  a  trespasser.  Com.  Dig.  Execution,  C.  5.  But  though 
authorized  to  enter  a  stranger's  house  he  cannot,  of  course, 
break  open  an  outer  door. 

SEC.  10.  A  sheriff  whose  term  of  office  has  expired  has 
no  right  to  collect  the  state  and  county  tax  as  unfinished 
business  from  the  assessment  list  which  has  come  into  his 
hands  while  in  office.  Fremont  vs.  Boling,  11  Cal.  389. 

SEC.  11.  The  taxes  of  1855,  after  March,  1856,  are  not 
of  the  unfinished  business  of  the  out-going  sheriff,  for  the 
reason  that  after  the  settlement  of  the  sheriff  with  the 
county  auditor  in  March,  the  delinquent  taxes  of  that  year 
are  transferred  to  the  tax  list  of  the  succeeding  year,  and  it 
is  made  the  duty  of  the  then  sheriff  to  proceed  to  collect 
such  delinquent  tax  as  other  taxes.  11  Cal.  389. 

SEC.  12.  There  is  no  irreconcilable  conflict  between  the 
amendatory  act  of  1853  and  the  revenue  acts  of  1853  and 
1854.  The  provision  that  the  sheriff  going  out  of  office 
shall  continue  to  collect  the  taxes  coming  to  his  hands 
before  his  time  expired,  was  intended  to  provide  for  the ' 


680  JUSTICES'  TREATISE. 

period  intervening  between  October  and  March,  the  time  of 
settlement.  11  Cal.  390. 

SEC.  13.  The  sheriff  being  ex  officio  tax  collector  of 
foreign  miners'  licenses,  by  an  act  of  the  legislature  may 
be  deprived  of  the  office  of  tax  collector  before  the  expira 
tion  of  term.  11  Cal.  390. 

SEC.  14.  The  sheriff  and  his  deputy  are  one  person  in 
law,  so  far  as  to  make  the  f.ormer  responsible  for  the  acts  of 
the  latter,  but  not  so  far  as  to  require  of  the  sheriff  impos 
sibilities  or  to  impose  unconscionable  exactions.  13  Cal. 
335. 

SEC.  15.  A  deputy  sheriff  who  seizes  property  under  an 
attachment,  is  not  authorized,  by  .virtue  of  his  office,  to  bind 
the  sheriff  by  contract  for  the  payment  of  a  keeper  to  take 
charge  of  the  property  so  attached.  Special  authority  for 
this  purpose  must  be  shown.  12  Cal.  413. 

SEC.  16.  The  duties  of  sheriff,  as  such,  are  more  or  less 
connected  with  the  administration  of  justice;  they  have  no 
connection  with  the  collection  of  the  revenue.  People  vs. 
Squires,  14  Cal.  16. 

SEC.  17.  A  sheriff  who  sells  land  under  execution  and 
gives  a  certificate  of  the  sale  to  his  purchaser,  and  subse 
quently  his  term  of  office  expires,  is  the  proper  person  to 
make  the  deed.  Consequently,  where  the  plaintiff's  com 
plaint  in  ejectment  averred  title  in  plaintiff  under  a  sheriff's 
sale  made  by  one  sheriff  and  a  deed  executed  by  his  suc 
cessor:  Held,  that  the  plaintiff  could  not  recover.  9  Cal. 
103. 

SEC.  18.  May  Execute  Deed,  when. — A  deputy  sheriff  may, 
after  the  expiration  of  the  term  of  office  of  his  principal, 
and  in  the  absence  of  the  latter  from  the  state,  execute  a 
deed  to  the  purchaser  at  a  judicial  sale  made  by  the  sheriff 
while  in  office.  The  authority  of  the  deputy  is  not  required 
by  the  act  of  1858,  allowing  the  deed  in  such  cases  to  be 
executed  by  the  succeeding  sheriff.  22  Cal.  373. 

SEC.  19.  Deputy  Sheriff  may  Finish. — A  deputy  sheriff 
having  levied  while  his  principal  was  in  office,  may  com 
plete  the  sale  after  his  successor  has  qualified.  Jackson  vs. 
Collins,  3  Cow.  89;  Jackson  vs.  Tuttle,  9  Cow.  233;  6  Wend. 
213. 


SHERIFFS  AND  CONSTABLES.  681 

• 

SEC.  20.  Must  Finish  Process. — Where  an  execution  has 
been  acted  upon  by  taking  the  property  into  possession  or, 
perhaps,  by  advertising  it  for  sale,  the  person  who  began 
must  finish  it.  Mason  vs.  Sudani,  2  Johns.  172. 

SEC.  21.  Fieri  Facias  must  be  Completed. — Where  the 
sheriff  has  commenced  the  execution  of  &  fieri  facias  while  in 
office,  he  may  complete  it  after  he  has  gone  out  of  office  ; 
and  so  it  is  in  relation  to  most  final  process.  This  rule  of 
the  common  law  has  now  been  carried  into  the  statute. 
8  Col.  406;  UCaL  380. 

SEC.  22.  A  constable  has  no  power  to  execute  process 
out  of  his  township.  15  Col.  296. 

SEC.  23.  Under  sections  six  hundred  and  one  and  six 
hundred  and  two  of  the  practice  act,  a  constable  may  serve 
an  execution  out  of  his  township.  17  Col.  294. 

SEC.  24.  A  constable,  like  any  other  ministerial  officer, 
has  the  right  to  appoint  as  many  deputies  as  he  pleases,  and 
the  deputy  is  not  guilty  of  a.nv  trespass  in  levying  by  virtue 
oj  legal  process  in  his  hands.  4  Gal.  188. 

SEC.  25.  Constable's  Deed. — A  sheriff's  or  constable's 
deed,  executed  under  an  execution  sale  which  does  not 
recite  the  judgment  on  which  the  execution  was  issued,  is 
void.  25  CaL  230. 

Diligence  of. 

SEC.  26.  Where  one  writ  of  attachment  was  placed  in 
the  sheriff's  hands  on  Sunday  and  another  against  the  same 
defendant  was  placed  in  the  hands  of  a  deputy  at  a  quarter 
past  twelve  on  Monday  morning,  the  sheriff  not  knowing 
the  fact,  and  the  first  levy  was  made  under  the  writ  at  one 
o'clock  Monday  morning,  the  sheriff  was  not  guilty  of  neg 
ligence  in  executing  the  first — no  special  circumstances  be 
ing  shown.  13  CaL  335. 

SEC.  27.  Reasonable  diligence  in  the  execution  of  pro 
cess  depends  upon  the  particular  facts ;  whether,  for  in 
stance,  the  writ  be  for  fraud  or  because  defendant  is  about 
to  leave  the  state.  13  CaL  335. 

SEC.  28.  In  the  service  of  process  the  sheriff  is  respon 
sible  only  for  unreasonably  or  not  reasonably  executing  it. 
He  is  not  bound  to  start  on  the  instant  of  receiving  a  writ 
to  execute  it  without  regard  to  anything  else.  13  CaL  335. 
86 


682  JUSTICES'  TREATISE. 

SEC.  29.  The  mere  omission  of  a  deputy  to  inform  the 
sheriff  of  having  a  process  in  hand,  is  not  such  negligence 
as  to  charge  the  sheriff  in  case  a  writ  last  in  hand  was  exe 
cuted  first.  13  Cal.  335. 

SEC.  30.  It  is  the  duty  of  an  officer,  after  he  has  once 
entered  upon  the  execution  of  an  attachment,  to  complete 
its  execution  with  diligence.  29  Cal.  312. 

Responsible  for  Deputy.         . 

SEC.  31.  Sheriff  Amenable  for  his  Deputy. — The  sheriff 
is  amenable  for  the  acts  of  his  deputy  only  in  the  ordinary 
execution  of  his  office.  If  he  act  under  the  special  instruc 
tions  of  the  plaintiff  or  his  attorney  in  giving  credit  on  a 
sale,  the  sheriff  is  not  answerable  for  his  conduct  in  the 
n*atter.  Gorham  vs.  Gale,  1  Cow.  739. 

SEC.  32.  Recovery  on  Bond. — If  a  sheriff  be  attached  for 
the  default  of  his  deputy,  he  may  pay  the  money  without 
defending  and  recover  against  the  sureties  on  the  deputy's 
bond.  Andrus  vs.  Bealls,  9  Low,  693. 

SEC.  33.  Does  not  Cover  Suits  Wrongfully  Commenced.— 
The  deputy's  bond  was  conditioned  to  indemnify  the  sheriff 
from  all  costs,  damages,  expenses  and  trouble,  touching 
and  concerning  the  return  and  execution  of  process  and 
against  the  not  executing  or  wrongfully  executing  of  pro 
cess  :  Held,  that  it  did  not  cover  suits  wrongfully  instituted, 
but  that  some  act  or  omission  of  the  deputy  must  be  shown 
of  such  a  character  that  the  sheriff  would  legally  be  bound 
to  answer  for  it  in  damage.  Franklin  vs.  Hunt,  2  Hill,  671. 

SEC.  34.  Breaches  of  Official  Duty. — The  bail  of  a  deputy 
sheriff  are  answerable  only  for  breaches  of  his  official  duty. 
They  are  not  responsible  for  any  want  of  courtesy  to  his 
principal,  nor  for  his  trespasses  color e  oficii;  but  for  his  de 
fault  in  paying  money  made  by  him  on  an  execution  where 
by  the  sheriff  has  been  made  liable,  they  are  answerable. 
Eowe  vs.  Richardson,  5  Barb.  385. 

SEC.  35.  Does  not  Discharge  Sureties. — A  sheriff  does  not 
discharge  the  sureties  of  his  deputy  by  neglecting  or  declin 
ing  to  remove  him  at  their  request.  Andrus  vs.  Bealls,  9 
Cow.  693;  Barnard  vs.  Darling,  11  Wend.  28. 


SHERIFFS  AND   CONSTABLES.  '        683 

SEC.  36.  Cant  Deny  Official  Character. — In  an  action  by 
the  sheriff  upon  his  deputy's  bond  to  him,  the  defendants 
are  estopped  by  it  from  denying  his  official  character.  Hall 
vs.  Lntlier,  13  Wend.  491. 

Seizure  of  Property  or  Levy  by. 

SEC.  37.  When  the  goods  are  found  the  officer  may  seize 
them.  The  seizure  is  complete  as  soon  as  the  goods  are  in 
the  power  of  the  officer  (2  8.  &  R.  Pa.  142;  3  Bawle,  401), 
and,  although  the  sheriff  may  return  that  he  levied  on  per 
sonal  property,  if  it  was  not  in  his  view  nor  taken  into  cus 
tody  it  is  no  levy  as  to  subsequent  judgment-creditors. 
Lowry  vs.  Conifer,  9  Penn.  349.  Still,  the  indorsement  on 
&  fieri  facias  of  levy  on  goods  which  the  sheriff  levied  on  by 
virtue  of  a  former  execution,  will  be  considered  a  good  levy 
under  the  second  or  last  execution,  because  the  goods  so 
levjed  upon  are  considered  as  in  his  custody  and  of  course 
within  his  power.  7  Penn.  206. 

SEC.  38.  To  render  the  levy  perfect  the  articles  seized 
should  be  designated  in  the  execution  or  in  a  schedule  an 
nexed  (1  Wash.  Ch.  29),  and  the  sheriff  should  take  posses 
sion  within  a  reasonable  time  in  such  a  manner  as  to  ap 
prise  everybody  of  the  fact  of  his  having  taken  them  in  exe 
cution.  1  Watts,  116.  But  if  the  defendant  dispense  with 
an  actual  seizure  for  his  own  benefit,  the  levy  as  to  him  will 
be  valid.  6  Watts,  468. 

SEC.  39.  The  fieri  facias  may  be  executed  at  any  time 
and  on  the  return  day,  but  not  on  Sunday,  when  it  is  for 
bidden  by  statute. 

SEC.  40.  In  general,  the  sheriff  may  seize  and  sell  all 
those  articles  which  he  can  find  belonging  to  the  defendant 
and  which  are  choses  in  possession,  except  such  as  are  ex 
empted  by  the  common  law  or  by  statute.  3  Bouv.  576. 

SEC.  41.  The  Effect  of  Seizure. — Although  the  seizure  of 
personal  property  does  not  change  or  alter  the  title  to  it, 
and  it  remains  in  the  defendant,  as  has  already  been  ob 
served,  yet  it  has  the  effect  of  releasing  the  lands  of  the 
debtor  with  regard  to  third  persons.  If,  therefore,  a  judg 
ment-creditor  who  has  the  first  lien  on  lands  of  his  debtor, 
issue  an  execution  and  levy  on  the  personal  property  of  the 


684  JUSTICES'  TBEATISE. 

defendant  sufficient  to  satisfy  his  .execution,  he  cannot 
afterward  abandon  that  levy  and  claim  to  be  paid  out  of  the 
proceeds  of  the  land.  Taylors  Appeal,  1  Penn.  393. 

SEC.  42.  Having  once  levied  on  sufficient  to  satisfy  the 
execution,  the  constable  cannot  make  a  second  levy,  for  the 
judgment  is  ordinarily  considered  discharged  by  the  first 
(7  Cow.  13),  if  made  on  property  sufficient  to  satisfy  it;  yet 
it  is  not  so  when  the  property  is  fraudulently  withdrawn  by 
the  debtor  from  the  possession  of  the  officer  (11  Wend.  125), 
or  when  it  shall  appear  that  the  property  levied  on  did  not 
belong  to  the  judgment-debtor  and  was  given  up.  Even  if 
the  property  should  be  sold  and  the  execution  returned 
satisfied,  and  a  third  person  should  afterwards  recover  the 
value  of  it  from  the  officer  or  the  party,  on  the  ground  it 
was  his  property,  the  judgment  would  not  be  discharged. 
6  Wend.  562. 

SEC.  43.  When  the  defendant's  goods  are  pawned,  or 
demised  or  let  for  years,  or  they  have  been  distrained  or  in 
any  other  way  are  subject  to  a  lien  in  the  hands  of  a  third 
person,  the  sheriff  can  only  seize  and  sell  the  right  of  the 
defendant  in  such  goods  subject  to  the  rights  of  such  third 
person.  3  Bouv.  577. 

SEC.  44.  In  general,  choses  in  action  cannot  be  taken  in 
execution  (3  Penn.  39),  but  in  some  of  the  states  power  is 
given  to  the  sheriff,  under  a  peculiar  process  authorized  by 
statute,  to  attach  the  rights  of  the  defendant  to  such  chose 
in  action  (which  is  the  law  in  this  state) ;  as,  where  a  debt  is 
due  by  a  third  person  to  the  defendant,  the  defendant's 
rights  may  be  attached  and  a  third  person  is  made  a  gar- 
nishee.  8  Bouv.  577. 

SEC.  45.  After  having  seized  the  defendant's  goods  the 
sheriff  should  keep  them  in  his  possession  till  they  are  sold; 
for  if  they  are  left  in  the  possession  of  the  defendant  it  will, 
in  general,  be  considered  a  badge  of  fraud.  4  Doll.  167, 
213.  And  another  judgment-  and  execution-creditor  may 
seize  them  and  the  first  levy  will  be  invalid.  2  S.  &  R.  142. 

SEC.  46.  And  if  the  first  levy  be  made  merely  to  keep  off 
other  creditors,  this  being  against  the  policy  of  the  law,  it 
will  not  protect  them  from  another  execution.  5  liawle,  286. 
And  a  direction  to  ' '  stay  proceedings  "  destroys  the  lien  as 


SHERIFFS  AND   CONSTABLES.  685 

it  respects  other  creditors,  and  enables  them  to  gain  a  pref 
erence.  4  Rawle,  280. 

SEC.  47.  Indeed,  any  act  which  shows  that  the  plaintiff 
has  not  a  continuing  mind  to  cause  the  writ  to  be  executed 
will,  as  between  himself  and  third  persons,  or  other  credit 
ors  of  the  defendant,  discharge  the  property  levied  upon 
from  his  lien;  the  lien  will  also  be  lost  by  taking  a  replevin 
bond.  5  Whart.  150. 

SEC.  48.  The  next  step  to  be  taken  by  the  sheriff  is  to 
advertise  the  goods  levied  upon  for  sale  at  public  auction, 
for  this  is  the  only  lawful  way  of  disposing  of  them;  he  can. 
not  keep  them  himself  and  pay  the  plaintiff's  debt  nor 
deliver  them  to  the  plaintiff  in  satisfaction  of  his  execution. 
The  plaintiff  may,  however,  buy  them  as  any  other  person 
at  their  value.  Bac,  Ab.  Ex.  C.  4. 

SEC.  49.  Where  the  execution  is  against  one  member  of 
a  firm  for  his  individual  debt,  the  sheriff  may  levy  upon, 
take  possession  of  and  remove,  the  goods  of  the  firm.  In 
such  case  he  seizes  all  the  property  and  not  a  moiety.  2 
Johns.  Ch.  584.  But  though  the  sheriff  may  seize  the  entire 
goods  he  can  only  sell  the  moiety  or  share  of  the  defend 
ant  therein,  yet  he  may  deliver  the  whole  goods  sold  to  the 
purchaser,  who  takes  them  as  joint  tenant  with  the  other 
partners  and  subject  to  account  for  the  full  value  in  favor 
of  the  partnership  creditors.  If  the  sheriff  sells  the  whole 
goods  he  will  be  a  trespasser.  10  Wend.  318.  If  there  be 
a  separate  execution  against  each  partner,  the  officer  seizes 
the  whole  property  and  sells  together,  the  one  moiety  under 
the  one  execution  and  the  other  moiety  under  the  other. 
Watson,  182. 

SEC.  50.  Where  the  execution -debtor  owns  property 
jointly  with  another,  a  sheriff  who  has  such  execution  has 
the  right  to  levy  on  such  property  and  take  it  into  posses 
sion,  for  the  purpose  of  subjecting  it  to  sale.  10  Cal.  378. 

SEC.  51.  So  if  a  chattel  be  owned  in  common,  on  an 
execution  against  one  part  owner,  the  sheriff  can  only  sell 
the  debtor's  share.  Allen,  156. 

SEC.  52.  But  he  may  take  possession  of  the  whole  prop 
erty  and  deliver  it  to  the  purchaser.  2  Barb.  636. 

SEC.   53.      Where   the   sheriff    seizes,    on  an  execution 


686  JUSTICES'  TREATISE. 

against  one,  goods  owned  by  two,  as  tenants  in  common, 
and  the  latter  afterwards  purchases  the  interest  of  his  co- 
tenant  therein,  the  sheriff  may  advertise  and  sell  the  entire 
interest  or  property  in  the  goods  without  making  a  new 
levy.  4  Hill  158. 

SEC.  54.  If  upon  a  levy  upon  partnership  property 
under  an  execution  against  one  partner,  the  other  partners 
receipt  for  the  property,  it  is  no  answer  to  an  action  against 
them  on  the  covenant  that  the  property  was  partnership 
property  and  had  been,  subsequently  to  the  covenant, 
applied  to  the  use  of  the  partnership.  23  Wend.  606. 

SEC.  55.  Where  thefe  is  a  levy  by  one  execution  on  the 
interest  of  one  member  of  the  firm,  and  another  execution 
comes  to  the  sheriff's  hands  against  the  firm,  the  latter  exe 
cution  must  be  paid  first;  but  if  a  sale  has  been  had  on  the 
former  and  not  on  the  latter,  the  first  execution  takes  the 
proceeds.  21  Wend.  676. 

SEC.  56.  Levy  upon  Interest  of  Owner  in  common  of  Chat 
tels. — Where  two  parties  were  owners  in  common  of  certain 
hay,  and  a  writ  of  attachment  against  one  of  them  was 
placed  in  the  sheriff's  hands  with  instructions  to  levy  on 
the  hay :  Held,  that  it  was  the  sheriff's  right  and  duty  to 
take  the  .entire  property  into  his  possession,  though  he 
could  not  sell  more  than  the  interest  of  the  attachment 
debtor;  and  that  the  other  owner  in  common  could  not 
maintain  replevin  against  the  sheriff  before  a  sale  for  his 
share.  Lawrence  vs.  Burnham,  4  Nev.  361. 

Sheriffs. 

SEC.  57.  Levy. — If  the  master  of  a  vessel  be  a  part 
owner,  his  interest  in  the  vessel  may  be  levied  on  and 
sold;  but  his  agency  as  master  will  in  no  wise  be  affected. 
Loring  vs.  lllsley,  1  Cal.  31. 

SEC.  58.  Levy. — A  being  indebted  to  B  delivered  to 
him  merchandise  as  security  for  his  debt,  which  he  was  to 
sell  and  apply  the  proceeds  to  its  payment.  A  sheriff 
levied  on  the  property  as  belonging  to  A :  Held,  that  the 
merchandise  was  not  subject  to  seizure  under  an  execution 
against  A  without  first  paying  the  debt  of  B.  Swanton  vs. 
SuUette,  I  Cal.  124. 


SHEEIFFS  AND  CONSTABLES.  687 

SEC.  59.  Levy — Attachment. — A  sheriff  who  levies  an 
attachment  by  virtue  of  the  process  of  the  court,  has  not 
the  right  of  property  in  the  debt,  and  cannot  maintain  an 
action  in  his  own  name  for  the  recovery  of  the  debt. 
Sublette  vs.  Melhado,  1  Cal.  105. 

SEC.  60.  Levy — Personal  Property. — By  the  statute  of 
1850,  personal  property  levied  on  by  the  sheriff  must  be 
actually  seized  and  sold  in  the  presence  of  the  purchaser. 
Smith  vs.  Morse,  2  Cal.  556. 

SEC.  61.  Levy  by  Authority  of  Agent. — The  assent  of  an 
ordinary  agent  who  had  general  charge  of  his  principal's  af 
fairs  during  his  temporary  absence,  will  not  justify  the 
sheriff  who  holds  an  execution  against  a  third  person  in 
levying  upon  property  in  the  possession  of  the  principal 
in  his  absence. 

SEC.  62.  Cannot  Levy  on  Money  in  his  Hands. — Money 
in  the  hands  of  a  sheriff  collected  on  execution  is  not  a 
debt  due  to  the  plaintiff  in  the  execution,  but  is  in  the  cus 
tody  of  the  law  until  properly  disposed  of,  and  is  not  the 
subject  of  Attachment  or  garnishment;  nor  can  the  sheriff 
attach  money  collected  on  execution  in  his  own  hands. 
Clymer  vs.  Willis,  3  Cal*  363. 

SEC.  63.  May  Levy  on  Real  Estate. — A  sheriff  on  the  re 
quest  of  defendant  may  levy  on  real  estate,  though  there 
be  personal  property  amply  sufficient  to  satisfy  the  execu 
tion.  Smith  vs.  Eamlally  6  Cal.  50. 

SEC.  64.  Levy  on  Property  Claimed  by  a  Third  Party. — In 
an  action  against  a  sheriff  for  refusing  to  levy  an  attach 
ment  on  certain  property  as  belonging  to  the  attachment- 
debtor,  testimony  that  the  property  had  been  claimed  by  a 
third  party,  and  the  right  of  property  tried  before*  a  sheriff's 
jury  and  decided  in  favor  of  claimant,  is  irrelevant  and 
inadmissible  when  those  facts  have  not  been  set  up  as 
new  matter  of  defense  in  the  answer.  Strong  vs.  Patterson, 
5  Cal.  157. 

SEC.  65.  May  Justify  Levy. — An  officer  who  seizes  prop 
erty  in  the  hands  of  the  debtor,  may  justify  under  the 
execution  or  process;  but  when  he  takes  property  from  a 
third  person,  who  claims  to  be  the  owner  thereof,  on  execu 
tion,  he  must  show  the  execution;  if  on  attachment,  the 


688  JUSTICES'  TREATISE. 

writ  of  Attachment,  and,  as  we  think,  the  proceedings  on 
which  it  was  based.  TJiorriburg  vs.  Hand,  7  Cal.  561. 

SEC.  66.  Vendors'  Lien  not  Subject  to  Levy. — The  equita 
ble  lien  held  by  the  vendor  of  real  estate,  after  absolute 
conveyance  thereof,  is  not  subject  to  levy  or  sale  on  execu 
tion,  nor  is  it  the  subject  of  private  transfer.  Ross  vs. 
Heintzen,  36  Cal.  313. 

SEC.  67.  A  levy  may  be  good  as  against  the  defendant 
in  the  writ  and  not  good  as  to  third  persons.  The  con 
duct  of  the  defendant  may  make  the  levy  good  by  way  of 
waiver  or  estoppel  or  agreement.  14  Cal.  48. 

SEC.  68.  As  to  third  persons,  there  can  be  no  leA^y  when 
the  officer  does  not  know  the  subject  of  the  levy;  as,  where 
he  stands  at  the  door  of  a  store  which  is  locked  and  keeps 
others  out.  The  levy  dates  from  the  time  he  gets  into  the 
store  and  takes  possession.  14  Cal.  48. 

SEC.  69.  Service  of  a  copy  of  execution  and  notice  of 
garnishment  upon  a  third  party,  constitute  no  lien  on  prop 
erty  of  the  debtor  in  his  hands  capable  of  manual  deliv 
ery.  6  Cal.  195. 

SEC.  70.  A  levy  under  execution  on  sufficient  property 
to  satisfy  it,  is  a  satisfaction  of  the  judgment.  8  Cal.  29. 

SEC.  71.  A  deputy  sheriff  who  seizes  property  under  an 
attachment  is  not  authorized,  by  virtue  of  his  office,  to  bind 
the  sheriff  by  contract  for  the  payment  of  a  keeper  to  take 
charge  of  the  property  so  attached.  Special  authority  for 
this  purpose  must  be  shown.  12  Cal.  412. 

SEC.  72.  Time  of  Return. — The  time  in  which  a  sheriff 
makes  return  to  an  execution  does  not  affect  the  validity  of 
the  execution  or  of  a  sale  under  it.  6  Cal.  277. 

SEC.  73'.  Levies  after  Petition  in  Insolvency. — Attachment 
issues  against  H.  and  the  sheriff  proceeds  with  the  writ  to 
his  store,  which  is  locked  and  fastened  front  and  rear  by 
iron  shutters.  The  sheriff  with  his  deputy  stand  at  the 
door  guarding  all  entrance.  H.  now  files  his  petition  and 
schedule  in  insolvency,  and  the  usual  order  of  stay  of  all 
proceedings  is  made.  H.  returns  to  the  store  and  advises 
the  sheriff  of  these  things.  The  sheriff  threatens  to  break 
open  the  store,  when  H.  gives  him  the  key  and  he  enters 
and  levies :  Held,  that  the  sheriff  has  no  right  to  levy,  and 


SHERIFFS  AND  CONSTABLES.  689 

that  the  property  vested  in  the  assignee  of  the  insolvent 
subsequently  appointed  by  relation  from  the  filing  of  the 
petition  and  schedule.  Taffts  vs.  Manlove,  14  Cal.  51. 

Indemnity. 

SEC.  74.  The  bond  given  to  release  property  attached 
only  releases  it  from  the  custody  of  the  sheriff  and  is  not 
an  actual  substitution  of  security,  compelling  the  plaintiff 
to  proceed  upon  the  bond  alone  to  collect  his  judgment.  6 
Cal.  277. 

SEC.  75.  In  a  bond  given  to  release  property  seized  on 
an  attachment,  the  obligors  undertook  to  pay,  on  demand, 
to  plaintiffs  in  the  action,  the  amount  of  the  judgment  and 
costs,  not  to  exceed  three  thousand  dollars,  which  plaintiff 
might  recover.  In  the  bond  the  action  is  recited  as  for  one 
thousand  six  hundred  dollars.  Upon  delivery  of  the  bond 
the  property  was  returned  to  the  debtor.  Plaintiffs  in  the 
action  had  judgment  for  an  amount  exceeding  the  penalty 
of  the  bond :  Held,  that  recovery  may  be  had  on  the  bond 
to  the  extent  of  the  penalty.  13  Cal.  553. 

SEC.  76.  If  in  a  bond  to  indemnify  a  sheriff  for  reple vy 
ing  property  claimed  by  a  person  other  than  the  defendant 
in  the  writ,  the  obligors  undertake  to  indemnify  him  from 
any  damage  he  may  sustain  by  reason  of  any  costs,  suits, 
judgments  and  executions,  that  shall  come  or  be  brought 
against  him,  a  sheriff  cannot  maintain  an  action  on  the 
bond  because  a  judgment  has  been  recovered  against  him, 
but  must  first  pay  the  judgment.  Lott  vs.  Mitchell,  32  Cal. 

00 

TKt, 

SEC.  77.  Time  a  Bond  takes  Effect. — A  bond  to  indem 
nify  a  sheriff  takes  effect  from  the  time  of  its  delivery. 
Buffendeau  vs.  Brooks,  28  Cal.  641. 

SEC.  78.  May  Defend  a  Suit  against  Himself. — The  sher 
iff,  though  indemnified,  is  entitled  to  take  upon  himself  the 
conduct  of  the  defense  of  a  suit  against  him  for  an  official 
act,  and  a  motion  by  the  indemnitor  to  substitute  an  attor 
ney  for  the  one  retained  by  the  sheriff  will  be  denied.  Peck 
vs.  Acker,  20  Wend.  605. 

Bail  in  Civil  Action. — The  sheriff  is  not  competent  bail 
in  a  civil  action.     Bailey  vs.  Warden,  20  Johns.  129. 
87 


690  JUSTICES'  TKEATISE. 

SEC.  79.  Sheriff  may  Deliver  up  the  Property  unless  In 
demnified. — But  the  sheriff  may  deliver  up  the  property  to 
the  claimant  if  the  jury  find  for  him,  unless  the  plaintiff 
indemnify  him.  10  Col.  189. 

SEC.  80.  Indemnity  Bond,  Remedy  on. — When  an  indem 
nity  bond  is  given  to  a  sheriff  to  hold  him  harmless  and 
pay  any  judgment  which  may  be  rendered  against  him  by 
reason  of  his  seizure  of  certain  property,  his  remedy  at 
law  on  the  bond  is  clear  for  the  amount  of  any  such  judg 
ment,  whether  he  be  solvent  or  not  or  whether  his  official 
sureties  could  be  held  or  not,  and  a  bill  in  equity  will  not 
lie.  White  vs.  Pratt,  13  Cal.  524. 

SEC.  81.  Bond  given  Voluntarily. — A  bond  given  volun 
tarily  to  the  sheriff  on  delivery  of  the  property  attached  is 
valid  at  common  law.  Palmer  vs.  Vance,  13  Cal.  557. 

SEC.  82.  Bond  to  Indemnify  against  Unlawful  Act. — A 
bond  given  to  a  sheriff  to  indemnify  him  for  any  loss  or 
damage  he  may  sustain  by  selling  property  levied  on  by 
him  by  virtue  of  an  execution  in  violation  of  an  order 
enjoining  its  sale  is  void,  because  it  is  an  unlawful  contract. 
The  unlawful  purpose  of  the  bond  may  be  shown,  though 
on  its  face  it  discloses  no  such  unlawful  purpose.  28  Cal. 
641. 

SEC.  83.  An  Undertaking  to  procure  Release  of  Attach 
ment. — An  undertaking  given  to  a  sheriff  to  procure  a 
release  of  goods  attached,  is  for  the  benefit  of  the  plaintiff 
who  may  sue  on  it,  and  if  the  sheriff  takes  a  sufficient  statu 
tory  undertaking  he  has  no  further  responsibility.  Curiac 
vs.  Packard,  29  Cal.  194. 

SEC.  84.  A  common-law  bond  in  form  upon  the  pre 
scribed  statutory  conditions,  given  to  sheriff  to  procure  a 
discharge  of  goods  attached,  is  a  sufficient  compliance  with 
the  provisions  of  the  statute.  29  Cal.  194. 

SEC.  85.  Notice  to  Sureties  on  Bond  Necessary. — If  a 
sheriff  is  indemnified  for  an  act  done  by  virtue  of  his  office, 
and  an  action  is  brought  against  him  to  recover  damages 
for  the  act,  and  judgment  is  recovered  against  him,  the 
sheriff  cannot  afterwards  have  judgment  against  the  sure 
ties  on  the  indemnifying  bond  upon  a  notice  of  five  days, 
unless  he  gave  the  sureties  written  notice  of  the  action 
brought  against  him.  Dennis  vs.  Packard,  28  Cal.  101. 


SHERIFFS  AND  CONSTABLES.  691 

SEC.  86.  Notice  to  the  Indemnifier. — "When  a  sheriff  is  in 
demnified  and  is  sued  for  the  act  for  the  doing  of  which 
he  is  indemnified,  he  should  at  once  notify  the  indemiiifier 
of  the  action,  in  order  to  make  a  judgment  against  him 
conclusive  evidence  against  his  indemnifies  Didel  vs. 
Pacheco,  21  Cal.  438. 

SEC.  87.  Bond  of  Indemnity  Judgment  first  to  be  Paid. — 
If  a  bond  to  indemnify  a  sheriff  for  reple vying  property 
claimed  by  a  person  other  than  the  defendant  in  the  writ, 
the  obligors  undertake  to  indemnify  him  from  any  damage 
he  may  sustain  by  reason  of  any  costs,  suits,  judgments 
and  executions,  that  shall  come  or  be  brought  against  him, 
the  sheriff  cannot  maintain  an  action  on  the  bond  because 
a  judgment  has  been  recovered  against  him,  but  must  first 
pay  the  judgment.  Lott  vs.  Mitchell,  32  Cal.  23. 

Keeping  of  Goods. 

SEC.  88.  Sheriff  must  keep  Goods  Safely. — When  the 
sheriff  has  levied  upon  goods,  he  must  be  diligent  to  keep 
them  safely,  to  satisfy  the  execution;  but  he  is  not  an 
insurer,  and  is  not  answerable  for  a  loss  of  the  goods  by 
accidental  fire.  Broioning  vs.  Hanford,  5  Hill,  588. 

SEC.  89.  Place  of  keeping  Goods  must  be  Secure. — The 
plaintiff's  omission  to  interfere  with  the  sheriff  in  his  dis 
position  and  manner  of  keeping  the  property  attached  is 
no  evidence  of  an  assent  to  his  neglect  or  violation  of  the 
duty  imposed  upon  him  by  law  to  take  the  property  and 
"keep  it  in  a  secure  place;"  so  held  where  the  property 
attached  was  coal  on  board  a  vessel  which  was  sunk  by  a 
storm  which  was  imminent  at  the  time  of  the  levy,  and  the 
sheriff  had  neglected  to  remove  the  coal,  and  the  plaintiff 
knew  of  the  neglect,  but  did  not  interfere  to  have  the  coal 
removed.  Moore  vs.  Westervelt,  2  Duer.  59. 

Conflicting  Claims. 

SEC.  90.  Conflicting  Claims. — The  application  of  an  at 
taching  creditor  to  compel  the  sheriff  to  pay  over  the  pro 
ceeds  of  goods  attached,  there  being  conflicting  claims  be 
tween  several  attaching  creditors,  may  be  made  by  motion. 
If  notice  of  the  motion  is  not  given  by  the  party  moving  to 


692  JUSTICES'  TREATISE. 

the  other  creditors,  it  is  the  duty  of  the  sheriff  to  do  so,  if 
he  wishes  the  decision  to  bind  them.  Dixey  vs.  Pollock,  8 
Cal.  573. 

SEC.  91.  Verdict  of  Sheriff's  Jury  on  Claim. — "Where 
property  is  levied  by  a  constable  or  sheriff  by  virtue  of  an 
attachment  or  execution  as  the  property  of  the  defendant  in 
the  suit  and  is  claimed  by  a  third  party,  and  a  jury  is  called 
to  try  the  right  of  property  under  the  claim,  and  the  verdict 
of  the  jury  is  against  the  claimant,  this  verdict  is  no  protec 
tion  to  the  officer  in  a  suit  brought  against  him  by  the 
claimant,  nor  is  it  admissible  in  evidence  as  a  defense.  28 
Cal.  122. 

SEC.  92.  Claim  by  Third  Parties. — Where  property  at 
tached  is  claimed  by  a  third  person,  the  sheriff  may  protect 
himself  before  a  jury  of  six  persons,  and  if  the  verdict  be 
in  favor  of  the  claimant  he  may  relinquish  the  levy  unless 
indemnified.  Davison  vs.  Dallas,  8  Cal.  227. 

Writs  of  Restitution. 

SEC.  93.  Forcible  Entry  in  Serving. — A  sheriff  is  not 
guilty  of  a  forcible  entry,  if  acting  in  good  faith,  by  virtue 
of  a  writ  of  restitution  he  removes  from  the  premises  a  per 
son  against  whom  the  writ  does  not  run  and  who  is  not  in 
privity  with  any  one  against  whom  the  writ  does  run.  29 
Cal.  214. 

SEC.  94.  Duty  of  Sheriff  in  Serving. — It  is  the  duty  of 
the  sheriff  having  the  writ  of  habere  facias  possessionem,  to 
remove  all  persons  who  come  upon  the  property  after  the 
suit  was  brought,  except  a  person  other  than  the  defendant, 
who  is  in  possession  under  a  title  adverse  to  the  defendant. 
29  Cal.  131. 

SEC.  95.  If  the  defendant  pending  an  action  against  him 
to  recover  possession  of  land,  colludes  with  another  person 
to  obtain  judgment  against  him  for  possession  by  a  writ  of 
restitution,  such  other  person  must  go  out  under  a  writ  of 
possession  against  the  defendant.  He  will  not  be  protected 
by  his  judgment  if  it  was  collusively  obtained.  36  Cal.  147. 

SEC.  96.  Prima  facie  all  who  come  into  possession  of 
the  land,  pending  the  action  to  recover  possession,  must  go 
out  under  the  writ  of  possession  if  the  plaintiff  recovers,  for 


SHERIFFS  AND  CONSTABLES.  693 

• 

the  presumption  is  that  they  came  in  under  the  defendant. 
36  Cal  147. 

SEC.  97.  Writ  of  Restitution. — A  sheriff  has  no  authority 
by  virtue  of  a  writ  of  restitution  to  remove  from  the  premi 
ses  described  in  the  writ  persons  who  were  not  parties  to 
the  judgment  on  which  the  writ  was  issued,  and  did  not 
enter  under  defendant  in  the  judgment  pending  the  suit. 
Tevis  vs.  Mlis  etal  25  Cal.  516. 

SEC.  98.  Who  Cannot  be  Dispossessed  by  a  Writ  of  Restitu 
tion. — Where  several  persons  are  owners  of  a  tract  of  land 
as  tenants  in  common,  and  the  interest  of  one  passes  to 
a  purchaser  under  execution  sale,  who  brings  ejectment 
against  the  execution  de*btor  alone  and  recovers  judgment, 
neither  the  other  tenants  in  common  nor  their  grantees  who 
purchase  and  enter  upon  the  land  pending  the  suit,  can  be 
dispossessed  by  the  sheriff  by  virtue  of  the  writ  of  restitu 
tion.  Watson  vs.  Dowling,  26  Cal.  125. 

SEC.  99.  Writ  of  Restitution. — Where  a  writ  of  restitution 
has  been  awarded  and  the  sheriff  refuses  to  execute  the 
same,  on  the  ground  that  the  mine  is  in  possession  of  cer 
tain  persons  not  parties  to  the  suit  who  claim  to  hold  under 
the  corporation,  the  court  will  award  a  peremptory  man 
damus  against  the  sheriff  to  compel  him.  Fremont  vs.  Crep- 
pen,  10  Cal.  211. 

N.  B. — The  writ  of  restitution  referred  to  in  the  section 
above  was  issued  to  execute  a  judgment  in  a  forcible  entry 
and  detainer  proceeding.  It  follows  from  the  hypothesis 
that  the  plaintiff's  verdict  is  conclusive  that  he  was  at  the 
time  his  possession  was  disturbed  peaceably  in  the  posses 
sion  of  the  property.  And  his  peaceable  possession  is  in 
compatible  with  the  possession  of  another — with  all  others. 
It  then  was  the  duty  of  the  sheriff  to  dispossess  all  persons 
found  upon  the  premises  and  restore  the  plaintiff  to  its  pos 
session;  because  the  object  of  the  statute  is  to  afford  a  sum 
mary  remedy  to  one  whose  possession  is  disturbed  by  force 
and  violence.  The  defendant  cannot  defeat  the  plaintiff  by 
transferring  another  to  the  possession.  If  he  could  do  so, 
that  person  after  judgment  against  him,  might  plant  a  third 
person  in  his  place,  and  he  a  fourth,  and  thus  defeat  the 
object  of  the  statute  forever. 


JUSTICES'  TEEATISE. 

Sale  By. 

SEC.  100.  Sale  out  oftJie  usual  course  of  Execution.  —If  the 
plaintiff  direct  the  deputy  sheriff  to  sell  on  credit  or  other 
wise  out  of  the  usual  and  regular  course  of  execution,  he 
thereby  makes  him  his  special  agent,  and  the  sheriff  is  not 
liable  to  the  plaintiff  in  the  premises.  Gorlmm  vs.  Gale  6 
Cow.  467. 

SEC.  101.  It  is  necessary  that  an  execution  directing  the 
sale  of  property  should  recite  the  judgment  on  which  the 
execution  was  issued,  otherwise  the  sale  and  a  deed  of  the 
property  sold  is  void.  Wiseman  vs.  McXultyetaL,  25  Cal. 
230. 

Proof  of  SJieriff's  Sale  on  Payment.— The  sheriff's  deed 
executed  under  a  judicial  sale  for  taxes  is  not  prima  facie 
or  conclusive  evidence  of  his  power  to  sell,  but  his  power  to 
sell,  to  recite  a  sale  in  his  deed  and  to  make  the  deed,  must 
be  proven  by  the  judgment  and  execution.  People  vs.  Doe 
31  Cal.  220. 

SEC.  102.  Sheriff's  Certificate  of  Sale.—  The  purchaser  of 
real  property  at  a  sheriff's  sale  who  receives  the  sheriff's 
certificate  of  purchase  has  not  a  title  to  the  property,  but  a 
lien  on  the  same.  30  Cal.  135. 

SEC.  103.  If  one  who  has  purchased  land  at  sheriff's  sale 
quit  claims  his  interest  in  the  same  before  a  sheriff's  deed 
is  given,  the  quit  claim  is  equivalent  to  an  assignment  of 
the  sheriff's  certificate  of  sale.  31  Cal.  591. 

SEC.  104.  Sheriff's  Sale  under  Decree  of  Foreclosure.— A 
sheriff  has  no  authority  to  make  sale  of  mortgaged  prem 
ises,  under  a  judgment  of  foreclosure  and  sale,  unless  an 
order  of  sale  is  issued  upon  the  judgment  and  placed  in 
his  hands.  30  Cal.  367. 

SEC.  105.  The  sheriff  must  use  a  reasonable  discretion 
in  the  sale  of  goods;  it  seems  that  if  a  very  inadequate 
price  be  paid  for  them  he  should  not  sell  them,  but  ought 
to  return  that  they  remain  in  his  hands  unsold  for  want  of 
buyers,  which  is  the  proper  return  when  he  has  had  no 
bid.  The/eri  facias  being  then  out  of  his  hands,  he  must 
wait  until  he  shall  be  authorized  to  sell  them  by  another 
writ,  venditioni  exponas,  and  under  this  writ  he  will  be 


SHERIFFS  AND   CONSTABLES.  695 

obliged  to  sell  at  whatever  price  he  can  get.  Keiglitley  vs. 
Birch,  3  Campb.  521. 

SEC.  106.  By  the  statute  of  1860,  personal  property- 
levied  on  by  the  sheriff,  must  be  actually  seized  and  sold 
in  presence  of  the  purchaser,  while  a  lien  attaches  to  real 
estate  upon  the  filing  of  the  transcript,  and  the  same  is  to 
be  sold  in  front  of  the  court  house  door;  and  all  leasehold 
estates  of  more  than  one  year  are  to  be  so  disposed  of. 
2  Cal  524. 

SEC.  107.  The  fact  that  a  sheriff's  sale  is  open  and  pub 
lic,  is  prima  facie  proof  that  no  advantage  is  taken  by  the 
partner  purchasing  of  his  copartner.  19  Cal.  120. 

SEC.  108.  The  regularity  of  a  sheriff's  sale  cannot  be 
impeached  by  a  stranger  or  in  a  collateral  proceeding. 
7  Cal.  160. 

SEC.  109.  Ordinarily,  the  maxim  of  caveat  emptor  ap 
plies  to  judicial  sales,  but  it  has  many  limitations  and  ex 
ceptions.  8  Cal.  21. 

SEC.  110.  A  sale  of  property  under  an  order  of  the 
probate  court  is  a  judicial  act,  and  therefore  not  within 
the  statute  of  frauds.  9  Cal.  181. 

SEC.  111.  A  substitution  of  one  bidder  for  another  at 
execution  sale,  who  fails  to  comply  with  the  terms  of  sale, 
cannot  affect  the  validity  of  the  sale.  The  order  directing 
the  sale  and  the  order  confirming  it  give  vitality  to  the 
purchase.  9  Cal.  181. 

SEC.  112.  Eeturn. — On  the  return  day  of  the  fieri  facias, 
the  sheriff  ougjit  to  make  his  return  of  what  he  has  done 
under  the  writ;  and  should  he  neglect  to  do  so,  he  may  be 
called  upon  by  rule  to  make  such  a  return  within  a  speci 
fied  time,  and  if  he  do  not  then  return  it  or  offer  a  lawful 
excuse  for  not  so  doing,  the  court  will  grant  an  attachment 
against  him;  but  in  some  cases,  where  there  is  just  cause 
for  it,  the  court  will  enlarge  the  time  within  which  he 
should  make  his  return.  The  returns  commonly  made  to  a 
fieri  facias  are  the  following : 

1st.  When  the  sheriff  has  not  found  any  goods  belong 
ing  to  the  defendant  on  which  he  could  levy,  he  returns 
that  fact  in  the  common  formula,  nulla  bana. 

2d.  He  returns  fieri  facias,  when  he  caused  to  be  made, 


696  JUSTICES'  TREATISE. 

out  of  the  defendant's  goods,  the  whole  or  part  of  the 
money  which  he  has  ready  to  be  paid  to  the  plaintiff. 

3d.  That  he  has  taken  the  goods  of  the  defendant  to  a 
certain  amount  which  remain  in  his  hands  for  want  of 
buyers.  In  this  case,  he  should  be  careful  to  specify  what 
goods  he  has  levied  upon,  for  a  general  levy  may  render 
him  responsible  for  the  whole  debt. 

4th.  When  he  has  levied  upon  land,  he  should  so  return 
and  state  what  lands  he  has  seized,  by  metes  and  bounds, 
so  that  when  they  are  sold  by  him,  he  may  make  a  definite 
deed  for  the  same.  He  should  also  return  what  further 
proceedings,  if  any,  have  taken  place  since  the  levy.  3 
Bouv.  Inst.  582. 

SEC.  113.  Where  an  officer  by  virtue  of  a  second  attach 
ment  levies  on  property  already  in  his  possession  by  virtue 
of  a  former  attachment,  it  is  only  necessary  for  him  to  re 
turn  that  he  has  attached  the  interest  of  the  defendant  in 
the  property  then  in  his  possession.  29  Cal.  312. 

SEC.  114.  Liberality  of  Courts. — Courts  should  exercise 
great  liberality  in  allowing  sheriffs  to  amend  their  returns, 
so  as  to  make  them  conform  to  the  true  state  of  the  facts 
and  to  correct  errors  and  mistakes.  23  Cal.  78. 

SEC.  115.  Old  Sheriff's  Return.— Alter  the  old  sheriff  is 
out  of  office,  he  cannot  return  a  writ  executed  by  him.  The 
old  sheriff  should  deliver  the  writ  to  his  successor,  who 
ought  to  return  it  into  court  with  the  former  sheriff's  re 
turn  thereon,  and  if  the  new  sheriff,  before  the  return  day 
of  the  writ,  let  the  defendant  to  bail  he  shquld  add  to  the 
former  sheriff's  return,  stating  the  fact.  Richards  vs.  Por 
ter,  1  Johns.  137. 

SEC.  116.  Return  Day,  the  Latest. — The  latest  period 
which  the  law  allows  for  the  service  of  an  execution  is  the 
return  day.  Devoe  vs.  Elliot,  2  Cal.  243;  Vail  vs.  Lewis,  4 
Johns.  450. 

SEC.  117.  Return  of  Process  on  the  Morning. — It  seems 
that  the  sheriff  may  return  the  process  on  the  morning  of 
the  return  day  and  be  excused,  though  he  might  have  ar 
rested  the  defendant  during  the  day :  provided,  he  had  used 
due  diligence  before.  Hinman  vs.  Borden,  10  Wend.  367. 

SEC.  118.     Amendments  of  Return. — The  return  of  an  at- 


SHEBIFFS  AND  CONSTABLES.  697 

tachment  cannot  be  amended  so  as  to  postpone  the  rights  of 
creditors  attaching  subsequently,  but  before  the  collection. 
8  Col.  21;  6  Gal  85. 

SEC.  119.  On  Final  Process. — The  general  statute  defines 
the  duties  of  the  sheriff  in  respect  to  final  process.  It  de 
clares  that  "the  sheriff  shall  execute  the  writ  of  (fieri 
facias)  by  levying,  etc.,  and  paying  to  the  plaintiff  or  his 
attorney  so  much  of  the  proceeds  as  will  satisfy  the  judg 
ment,  etc.,  and  if  there  be  any  excess,  he  shall  return  the 
same  to  the  judgment  debtor."  These  acts  are  to  be  con 
strued  pari  materia.  10  Cal.  486. 

SEC.  120.  Returns  by  deputy  must  be  made  in  the  name 
of  the  sheriff.  23  Cal.  401. 

SEC.  121.  The  lien  of  an  attaching  creditor  cannot  be 
divested  by  the  failure  of  the  sheriff  to  make  a  proper  re 
turn  of  the  writ,  and  it  is  not  necessary  where  the  levy  is 
made  by  posting  a  copy  of  the  writ  upon  the  premises,  that 
the  return  of  the  sheriff  should  show  that  the  premises  were 
at  the  time  unoccupied.  Bitter  vs.  Scannell,  11  Cal.  248. 

SEC.  122.  A  mistake  in  the  date  of  the  sheriff's  return 
may  be  corrected  at  any  time.  Hitter  vs.  Scannell,  11  Cal. 
249. 

SEC.  123.  The  title  of  a  purchaser  of  real  estate  at  sher 
iff's  sale  does  not  depend  upon  the  return  of  the  officer  to 
the  writ.  The  purchaser  has  no  control  over  the  conduct  of 
the  officer  in  this  respect.  Cloud  vs.  El  Dorado  County,  12 

Cal.  133. 

Damages   Recoverable  of. 

SEC.  124.  Liability  of  Sheriff  to  Pledgee  for  Seizing  Goods. — 
In  an  action  by  a  pledgee  against  a  sheriff  for  conversion  of 
goods  pledged,  the  sheriff  who  has  seized  them  under  a  law 
ful  writ  in  his  hands  will  be  treated  as  in  privity  with  the 
owner,  the  pledgeor,  provided  he  has  pursued  the  law  in 
making  such  seizure,  and  will  be  held  only  for  plaintiff's 
special  interest  in  the  goods;  but  in  any  other  event  he  will 
be  treated  as  a  stranger  and  held  for  their  full  value.  34 
Cal.  601. 

SEC.  125.  Measure  of  Damages. — Where  he  has  levied  or 
might  have  levied  upon  sufficient  property  to  satisfy  the 
amount  indorsed  upon  the  execution,  such  amount,  if  not 


698  JUSTICES'  TREATISE. 

more  than  the  recovery,  is,  with  interest,  the  measure  of 
damages,  and  conclusive  upon  the  sheriff.  19  Wend.  T9. 

SEC.  126.  Assumpsit  against  Sheriff. —  Assumpsit  lies 
against  the  sheriff  for  the  amount  of  goods  sold  and  de 
livered  by  him  under  an  execution,  though  the  purchaser 
refuses  to  pay  for  them.  Denton  vs.  Livingston,  9  Johns.  96. 

SEC.  127.  Measure  of  Damages. — In  an  action  against  a 
sheriff  for  wrongfully  seizing  and  selling  property  under  an 
execution,  and  when  there  was  no  wantonness  or  oppression 
on  the  part  of  such  officer  in  the  seizure,  the  measure  of 
damages  is  the  value  of  the  property  at  the  time  it  was 
seized  and  legal  interest  on  such  amount  from  the  time  of 
seizure  up  to  the  time  of  the  rendition  of  the  verdict.  Phelps 
vs.  Owen,  11  Cal.  23. 

SEC.  128.  Liable  for  Damages  for.  not  Executing  Writ. — 
The  sheriff  received  a  writ  of  assistance  commanding  him 
to  put  the  plaintiff  in  possession  of  premises  described 
therein,  and  went  with  plaintiff  to  the  premises,  but  against 
plaintiff's  wishes  and  protestations  refused  to  execute  the 
writ.  t  On  a  subsequent  day  he  did  execute  the  writ, 
but  the  parties  in  possession,  being  the  parties  named 
in  the  writ  as  defendants,  had  destroyed  fixtures  and  by 
willful  and  malicious  acts  had  injured  the  premises :  Held, 
that  the  sheriff  is  liable  for  the  damages  thus  done ;  that  he 
is  presumed  to  have  known  what  his  duty  was  and  to  have 
acted  in  willful  violation  of  it,  and  that  he  must  respond  in 
damages  however  remote.  Chapman  vs.  T/iornburg,  17  Cal. 
87;  18  Cal.  689;  26  Cal.  514. 

Forms  for  Sheriffs  or  Constables  in  Criminal  Cases. 
No.  1. — Indorsement  on  Warrant 


township, 
county  of 


J 


ss. 


It  appearing  satisfactory  to  me  by  the  oath  of that  the  signature 

of to  the  within  warrant  is  in  the  handwriting  of  said , 

the  justice  of  the  peace  within-mentioned,  I  do  therefore  hereby  authorize 

,  the  person  bringing  this  warrant,  or  any  other  officer  to  whom 

such  warrant  may  be  directed,  to  execute  the  same  in  said  county  of  .... 


Justice  of  the  peace  of  .......  township, county. 


SHEEIFFS  AND  CONSTABLES.  699 


No.  2. — Admission  of  Receipt  of  Process  by  the  Sheriff. 

The  people 

against 

i 

Bench  warrant  of county  against  the  defendant  upon  an  indictment 

in  said  county  for 

Dated  

Received  by  me  for  execution  . . . .,  18. . 

,  sheriff. 

No.  3. — Return  where  the  Magistrate  issuing  the  Warrant  has  Gone  Out  of  Office. 

I  have  arrested  the  within  defendant,  as  I  am  within  commanded;  and  I 
further  return,  that  at  the  time  of  such  arrest, ,  the  magistrate  issu 
ing  the  within  warrant,  had  ceased  to  be  such  magistrate  by  the  expiration  of 
his  term  of  office  [or,  "by  resignation  of  his  said  office,"  or,  "removal  from 
office,"  or,  "removal  from  the  town  or  county  "]. 

Dated  .  .,  sheriff. 


No.  4. — Return  where  the  Magistrate  issuing  the  Warrant  is  Absent. 

I  have  arrested  the  within  defendant,  as  I  am  within  commanded;  and  I 
further  return,  that  on  making  such  arrest  I  forthwith  brought  the  said  de 
fendant  to  the  office  of  the  magistrate  before  whom  the  within  wafrant  is 
made  returnable,  but  that  said  magistrate  was  then  absent  therefrom  and 

could  not  be  found  to  proceed  on  the  said  warrant. 

,  sheriff. 


No.  5. — Return  to  Warrant  on  Arrest  of  Criminal. 

I  have  arrested  the  within-named  defendant,  and  have  him  now  here  in 
my  custody,  as  I  am  within  commanded. 

Dated 

,  sheriff, 

[or ,  sheriff, 

by ' ,  deputy, 

or ,  constable]. 

No.  6. — Return  of  Arrest  and  Rescue. 

I  arrested  the  within  defendant  as  I  am  within  commanded,  but  the  said 
defendant,  before  he  could  be  conveyed  to  jail,  forcibly  rescued  himself,  on 
[etc.,  at  etc.],  and  escaped  out  of  my  custody,  and  since  the  said  defendant  is 
not  found  in  my  county. 

» 

Sheriff  of county. 

No.  1. — Return  of  Arrest,  and  that  Defendant  is  Sick. 
I  have  arrested  the  within  defendant,  who  at  the  time  of  his  arrest  and 


700  JUSTICES'  TREATISE. 

still,  on  this day  of ,  18 .  . ,  at  last  day  of  the  return  of  this  order 

[or,  "execution,"  or,  "warrant,"  or,  "ne  exeat  "J,  is  so  sick  that  from  fear 
of  his  death  I  cannot  have  him  as  I  am  within  commanded. 

Dated , 

Sheriff  of  ....  county. 

No.  8 — Return  to  such  Warrant  where  the  Defendant  desires  to  be  let  to  Sail  in 
the  County  where  Arrested. 

I  have  arrested  the  within  defendant  in  pursuance  of  the  within  warrant 
and  of  the  indorsement  thereon. 

Dated , 

Sheriff  of county. 

No.  9. — Return  where  all  the  Defendants  cannot  be  Found. 

I  have  arrested  the  within-named ,  and  have  him  now  here  in 

my  custody  as  I  am  within  commanded;  but  the  within-named 

cannot  be  found. 

,  sheriff. 

No.  10. — Return  of  Arrest  under  Order,  and  of  holding  to  Sail. 

I  have  arrested  the  within  defendant  pursuant  to  the  within  order,  and  at 
the  same  time  delivered  to  him  a  copy  thereof,  and  of  the  affidavit  on  which 
the  order  was  granted;  and  have  taken  from  said  defendant  the  undertaking 

of [here  state  occupation],  residing  in  . . . . ,  and ,  residing 

in  same  place,  a  copy  of  which,  duly  certified  by  me,  is  returned  herewith. 

Dated , 

Sheriff  of  ....  county. 

No.  11.— Return  where  the  Defendant  is  Committed  for  want  of  Sail. 

I  have  arrested  the  within  defendant  pursuant  to  the  within  order,  and 
have  him  in  my  custody  in  the  common  jail  of  the  county  of ,  for  want 

of  bail. 

,  sheriff. 

No.  12 — Return  where  Defendant  makes  a  Deposit  instead  of  Sail. 

I  have  arrested  the  within  defendant  pursuant  to  the  within  order,  and  at 
the  same  time  delivered  to  him  a  copy  thereof  and  of  the  affidavit  on  which 
the  order  was  granted,  and  I  have  received  from  said  defendant  the  sum  of 
....  dollars  instead  of  bail,  and  have  deposited  the  same  with  the  county 
clerk  of county. 


Sheriff  of county. 

No.  13 — Certificate  of  Deposit  of  Amount  instead  of  Sail. 

[Title  of  action.  ]t 
The  above  defendant  having  been  arrested  by  me  under  and  pursuant  to  an 


SHEKIPFS  AND  CONSTABLES.  701 

order  of requiring  such  defendant  to  be  held  to  bail  in  the  sum  of 

I  hereby  certify  that  I  have  received  from  said  defendant  the  said  sum  of 

....  instead  of  bail. 

.Dated sheriff. 

No.  14. — Certificate  of  Clerk  or  Justice  of  Deposit  with  Him, 


[Title.]   [ 


I  certify  that ,  sheriff  of  the  county  of ,  has  this  day  paid  into 

court  the  sum  of  ....  dollars,  being  the  amount  mentioned  .in  the  order  of 
arrest  in  this  action. 


Clerk  of county. 

No.  15. — Invitation  to  Attend  the  Execution  of  a  Criminal. 

SIB:  Pursuant  to  the  statute  in  such  case,  you  are  hereby  invited  to  be 
present  at  the  execution  of  ....  at  the  jail  of  said  county  in  . . . . ,  on  the  .... 
day  of  .... 

Dated ,  sheriff. 

To  Hon 

Forma  in  Civil  Cases. 

No.  16. — Return  to  Search- Warrant. 

I  have  executed  the  within  search-warrant,  as  I  am  within  commanded,  by 
making  diligent  search  in  the  place  designated  in  the  said  warrant  for  the 
goods  therein  described,  but  cannot  find  the  said  goods  or  any  part  thereof 
[or  have  found  said  goods  and  have  them  now  here,  as  I  am  within  com 
manded]. 

Dated , 

Sheriff  of county. 

No.  17. — Return  to  a   Warrant. 

I  have  arrested  the  defendant  and  have  him  in  custody  before  the  court' 
and  have  notified  [or  not  notified]  the  plaintiff. 

Dated 

Fees, ,  constable. 

No   18. — Admission  of  Receipt  of  Civil  Process. 
. .  Court. 


against 


Execution  for  $ ,  on  a  judgment  rendered  and  docketed  in 

county,  with  directions  indorsed  to  levy  and  collect  $....,  and  interest  from 
. . . .,  besides  fees  [or  summons  and  complaint  and  copies]. 

Dated 

Eeceived  by  me  this day  of ,  18 . . ,  at o'clock. 

,  sheriff. 


702  JUSTICES'  TEEATISE. 

No.  19. — Return  of  Rescue  and  Resistance  to  an  Execution. 

State  of ,     | 

county,  j  ss> 

I,  the  sheriff  of  said  county,  do  certify  and  return  to  the court  now 

here,  that  by  virtue  of  the  within  execution,  to  me  directed  and  delivered 
for  execution,  I  did  on  the  ....  day  of  . . . .,  at  . . . .,  in  said  county,  duly 
levy  upon  and  take  possession,  certain  goods  and  chattels  of  the  defendant, 

to  wit: ;  and  while  I  had  the  same  in  my  possession,  as  aforesaid,  and 

while  taking  an  inventory  thereof,  I  was  violently  assaulted  and  resisted  by 

the  within-nanied  defendant,  and   by ,  and then  and  there 

present,  aiding  and  abetting  him,  the  said  defendant,  and  that  the  said  .... 
then  and  there  violently  seized  and  carried  off  the  said  goods  and  chattels 
and  rescued  the  same  from  such  levy,  and  that  I  have  been  unable  to  obtain 
possession  of  the  same. 

Dated 

Sheriff  of county. 

No.  20. — Return  to  Process  that  Defendant  cannot  be  Found. 
The  within  defendant  cannot  be  found  in  my  county. 

,  sheriff. 

This  return  will  be  a  proper  return  to  all  process  where 
the  defendant  cannot  be  found,  whether  it  be  to  a  summons, 
judge's  order,  attachment,  ca  sa  or  ne  exeat. 

No.  21.— Notice  of  Justification  of  Sail 
[Title  of  action.]  i 

SIB:  Take  notice,  that  the  bail  in  the  undertaking  taken  on  the  arrest  of 

the  defendant  in  this  action  will  justify  before  the  Hon ,  county 

judge  of county,  at  his  office  in ,  on  the    ...  day  of    ,  at 

o'clock  in  the  forenoon. 

Dated ,  sheriff. 

To ,  attorney  for  plaintiff. 

No.  22. — Return  to  Execution  of  Nulla  Bona. 

The  defendant  has  no  goods  or  chattels,  lands  or  tenements,  within  my 
county,  whereof  I  can  make  the  amount  of  the  within  execution  or  any  part 
thereof. 

Dated 

Fees, 

Sheriff  of  ....  county. 

No.  23.—  Where  Part  is  Made,  and  Nulla  Bona  for  the  Residue. 

I  have  made  the  sum  of ,  part  of  the  moneys  directed  to  be  made  upon 

the  within  execution,  and  I  can  find  no  goods  or  chattels,  lands  or  tene- 


SHERIFFS  AND   CONSTABLES.  703 

ments,  of  the  within  defendant  in  my  county,  whereof  I  can  make  the  bal 
ance  of  the  said  execution. 


Sheriff  of county. 

No.  24. —  Where  the  Whole  is  Made. 

I  have  made  the  amount  of  the  within  execution  out  of  the  goods  and 
chattels,  lands  and  tenements,  of  the  within  defendant,  which  I  have  ready 
at  the  day  and  place  within  mentioned,  to  render  to  the  within  plaintiff,  as  I 
am  within  commanded  [or,  "have  paid  the  same  to  the  within  plaintiff,"  or, 
"  have  paid  the  same  into  court,"  or,  "  satisfied  "]. 

Dated , 

Sheriff  of county. 

No.  25. —  Where  Goods  Remain  Unsold  for  want  of  Bidders. 

I  have  levied  on  goods  and  chattels  of  the  defendant,  under  the  within 
execution,  which  remain  on  hand  for  want  of  bidders ;  therefore,  I  cannot 
have  the  moneys  at  the  day  and  place  within  mentioned,  as  I  am  within 

commanded.  , 

Sheriff  of  ....  county. 

No.  26. — Nulla  Bona  where  but  one  of  two  Joint  Debtors  are  Served. 

I  can  find  no  goods  or  chattels,  lands  or  tenements,  of  the  within  defend 
ant,  ,  in  my  county,  and  no  goods  or  chattels  of  the  defendant, .... 

. . . . ,  owned  by  him  jointly  with  the  said ,  of  which  I  can  make  the 

amount  of  the  within  execution  or  any  part  thereof. 

Dated , 

Sheriff  of county. 

No.  27. — Nulla  Bona  against  an  Executor  or  Administrator. 

The  within  defendant  has  no  goods  or  chattels  of  the  within-named  de 
ceased  which  were,  at  the  time  of  his  death,  in  his  hands  to  be  administered, 
in  my  county,  whereof  I  can  cause  to  be  made  the  damages  within  men 
tioned  or  any  pail  thereof. 

Fees,  ....  , 

Sheriff  of county. 

No.  28. — Return  to  Execution  Stayed  by  Appeal  Before  Levy. 

I  certify  and  return,  that  after  the  delivery  of  the  said  execution  to  me 
and  before  levy  thereunder,  the  execution  of  the  same  was  stayed,  by  ap 
peal;  whereupon  I  could  not  have  the  moneys  within-mentioned  at  the  re 
turn  day  of  such  execution,  as  I  am  within  commanded. 

Fees, 

Sheriff  of  ....  county, 

No.  29. —  Wlien  Stayed  by  Appeal  or  Injunction  after  Levy. 
After  the  receipt  of  the  within  execution  by  me,  I  levied  in  due  form  of 


704  JUSTICES'  TKEATISE. 

law  upon  certain  goods  and  chattels  of  the  defendant;  but  before  sale 
thereof,  the  execution  was  stayed  by  appeal  [or,  "by  injunction"];  there 
fore,  I  could  not  make  the  within  moneys  by  the  day  within-mentioned: 
nevertheless,  I  have  the  said  goods'  and  chattels  in  my  custody,  to  answer  to 
the  within  execution  when  said  appeal  shall  be  determined  [or,  "  said  in 
junction  is  removed"]. 


Sheriff  of  ....  county. 

No.  30. — Return  when  Judgment  or  Execution  is   Vacated. 

After  the  receipt  of  the  within  execution  by  me,  I  levied  in  due  form 
upon  certain  goods  and  chattels  of  the  defendant;  but  before  sale  was 
served  with  an  order  of  this  court,  duly  certified  by  the  clerk  of  ....  county, 
vacating  the  said  judgment  [or,  "  setting  aside  the  execution"];  therefore, 
I  have  released  the  said  goods  and  chattels  from  the  said  levy,  and  cannot 
have  the  within  moneys  at  the  day  and  place  within-mentioned,  as  I  am 
within  commanded. 


Sheriff  of  ....  county. 

No.  31. — Return  of  Levy  and  Sale  when  there  is  a  Controversy  as  to  Title  of 

the  Property. 

On  the  receipt  of  the  within  execution,  I  levied  in  due  form  of  law  upon 
the  following  property,  then  in  the  possession  of  the  defendant,  in  my 

county,  to  wit : ;  and  that  on  the day  of ,  at ,  in  said  county, 

I  sold  the  following  part  of  such  property,  to  wit: ,  whereby  I  realized 

sufficient  to  pay  the  within  execution,  with  interest  and  fees  of  levy  and 
sale;  and  thereupon  I  returned  to  the  defendant  the  balance  of  said  prop 
erty,  to  wit :  . . . . 

Dated 

Sheriff  of  ....  county. 

No.  32. — Return  of  an  Execution  Satisfied. 

I  have  the  amount  of  the  execution  of  the  goods  and  chattels  of  the  de 
fendant  [or,  "  satisfied"]. 

,  constable. 

[Satisfied  in  Part] 

I  have  made  the  sum  of ,  of  the  goods  and  chattels  of  the  within  de 
fendant,  and  can  find  no  other  goods  and  chattels  of  said  defendant, 
whereof  I  can  make  the  remainder  of  the  said  execution. 

Dated 

,  constable. 

No.  33. — Return  where  Goods  Remain  Unsold. 

Levied  on    ,  the  property  of  the  within  defendant,  which  remains 

in  my  possession  unsold,  for  want  of  bidders. 

[  Where  Appeal  is  Brought.] 
Proceedings  stayed  by  appeal. 


SHERIFFS  AND  CONSTABLES.  705 


No.  34. —  Where  Goods  Levied  on  are  Replevied. 

After  the  coming  to  me  of  the  within  execution,  I  levied  in  due  form  of 
law  upon  certain  goods  and  chattels  of  the  within  defendant;  but  before  the 
sale  thereof  the  same  was  replevied  and  taken  out  of  my  custody  by  .... 

. . .  . ,  one  of  the  coroners  of  the  within  county,  at  the  suit  of ,  and 

I  can  find  no  other  goods  or  chattels,  lands  or  tenements,  of  the  within  de 
fendant  in  my  county,  whereof  to  make  the  amount  of  the  within  execution 
or  any  part  thereof. 


Sheriff  of county. 

No.  35. — Return  where  the  Moneys  Realized  have  been  Applied  to  the  Payment  of 

Other  Liens. 

I  levied  on  certain  goods  and  chattels  of  the  defendant  under  and  by  virtue 
of  the  within  execution,  and  duly  sold  the  same;  on  [or,  "after"]  such  sale 

I  was  duly  notified  that had  a  lien  and  claim  upon  the  said  goods 

and  chattels  to  the  amount  of  ....  dollars,  for  work  and  labor  bestowed  upon 
the  same,  and  that  I  paid  and  discharged  said  lien  and  have  applied  the  bal 
ance  of  the  proceeds  of  said  sale,  to  wit:  ....  dollars,  on  this  execution;  and 
I  can  find  no  goods  or  chattels,  lands  or  tenements,  of  the  defendant  where 
of  I  can  make  the  amount  of  the  within  execution  or  any  part  thereof. 


Sheriff  of  ....  county. 

No.  36. — Notice  of  Claim  by  a  Third  Person. 
[Title  of  action.  ]  j- 

SIB:  Take  notice  that claims  the  property  taken  by  me  under 

the  order  in  this  action,  and  has  made  affidavit  of  his  title  thereto  ancl  right 
to  the  possession  thereof  and  of  the  grounds  of  such  right  and  title,  and 
served  the  same  on  me,  and  that  I  do  therefore  require  to  be  indemnified  by 
the  plaintiff  against  such  claim,  and  in  default  of  such  indemnity  I  shall  not 
deliver  such  property  to  the  plaintiff  nor  keep  the  same. 

Dated  . . 


Sheriff  of  ....  county. 
To ,  plaintiff's  attorney. 

No.  37. — Receipt  for  Property  Levied  on. 
[Title  of  action.  ]t 

Execution  for  ....  dollars  and  interest  from  . . . .,  besides  sheriff's  fees, 
received  by  me ,  18 . . ,  for  execution. 

I  have  levied  upon  the  following  property  upon  the  premises  of  the  de 
fendant  and  in  his  possession,  under  said  execution,  to  wit : 


Sheriff  of  ....  county. 
I  hereby  acknowledge  that  I  have  received  the  above-described  property, 

89 


706  JUSTICES'  TREATISE. 

so  levied  upon  by  the  sheriff,  and  hereby  promise  and  undertake  to  return 
the  same  and  every  part  thereof  to  the  said  sheriff,  on  demand,  or  pay  the 
above  judgment  and  sheriff's  fees. 

[Signed]  

Dated 

By   Constable. 

No.  38.' — Return  to  Summons  Personally  Served. 

Personally  served  on  the  day  of ,  18 . . ,  by  delivering  a  copy  to 

the  defendant,  at 

Fees,   ,  constable. 

No.  39. — Inventory  of  Goods  Attached. 

Inventory  of  goods  attached  by  me,  under  and  by  virtue  of  the  within  [or, 

' '  annexed  "]  attachment,  this day  of ,  18 . . ,  to  wit :  

,  constable. 

No.  40, — Inventory  when  Articles  are  Numerous. 

Inventory  of  goods  and  chattels  levied  on  this  ....  day  of  . . . . ,  and  taken 

into  my  custody  by  virtue  of  the  annexed  execution,  viz :  

,  constable. 

No.  41. — Indorsement  on  Execution  when  Articles  Levied  on  are  Numerous. 

I  have  levied,  this day  of  ,  18 . . ,  by  virtue  of  the  within  execu 
tion,  upon  the  goods  and  chattels  of  the  defendant,  mentioned  in  the  an 
nexed  inventory, 

,  constable. 

No.  42. — Certificate  of  Constable  of  Attachment  and  Inventory. 

I  certify  that  the  within  is  a  copy  of  the  attachment  issued  by 

and  to  me  directed  and  delivered;  and  also  of  the  inventory  of  the  property 
seized  by  virtue  thereof,  and  by  me,  this  day 

Dated  

Fees,  . . . .    '  >. ,  constable, 

No.  43. — Return  to  Attachment. 

I  certify  that  on  the  ....  day  of  . . . . ,  I  attached  and  took  into  my  pos 
session  and  custody,  all  the  personal  property  of  the  defendant  to  be  found 
in  my  county  [or,  "certain  personal  property  of  the  defendant"],  and  that 
immediately  thereupon  I  made]  an  inventory  of  the  property  so  attached 
which  is  indorsed  hereon  [or,  "is  hereto  annexed"],  and  served  a  copy  of 
the  within  attachment  and  inventory,  duly  certified  by  me,  upon  the  within 

defendant  personally  [or  as  the  case  may  be]. 

,  constable. 

No.  44. — Return  to  a   Venire. 

I  certify  that  by  virtue  of  the  within  precept  I  have  personally  summoned 
as  jurors  the  several  persons  named  in  the  annexed  list. 
Dated  . .  . .  constable. 


STOPPAGE  IN  TRANSITU.  707 

No.  45. — Indorsement  of  Levy  on  Execution. 

Leviel  by  virtue  of  the  within  execution  this day  of   ,  18. .,  on 

.....  the  property  of  the  defendant,  on  his  premises  in  .... 

,  constable. 


CHAPTER     LXXXII. 

STOPPAGE  IN  TKANSITU. 

SECTION  1.  This  is  the  name  of  that  act  of  a  vendor  of 
goods  upon  a  credit  who,  on  learning  that  the  buyer  has 
failed,  resumes  the  possession  of  goods  while  they  are  in 
the  hands  of  a  carrier  or  middleman  in  their  transit  to  the 
buyer,  and  before  they  get  into  his  actual  possession. 
Bouv.  Diet.  531. 

SEC.  2.  The  right  of  a  vendor  to  a  stoppage  in  transitu 
exists  until  the  goods  sold  arrive  at  their  final  destination 
or  come  into  the  possession  of  the  consignee.  7  Cat.  213. 
Depositing  the  goods  with  agent  to  be  forwarded  does  not 
terminate  the  transitu.  7  Cal.  213.  And  this  may  be  done 
where  the  vendor  disposes  of  his  goods  to  one  who  is  insol 
vent  upon  a  credit.  He  has  a  right  to  stop  them  before  the 
purchaser  obtains  the  possession  of  them.  23  Cal.  508;  37 
Col.  630.  As  a  lien  it  is  paramount  to  any  other  lien  on  the 
goods  which  may  be  claimed  by  third  persons,  in  whatever 
manner  obtained.  23  Cal.  508. 

SEC.  3.  If  the  goods  be  in  the  possession  of  a  carrier, 
and  the  vendor  demand  them,  the  carrier  will  be  liable  to 
the  vendor  if  he  refuse  to  deliver  them.  Nor  is  an  express 
demand  of  the  carrier  necessary,  so  he  be  clearly  informed 
that  the  vendor  wishes  to  retake  them .  If  the  goods  be  in 
possession  of  an  agent  of  the  carrier,  notice  to  him  is 
notice  to  the  carrier.  A  letter  by  the  vendor  to  the  agent 
of  the  carrier  in  possession  of  the  goods,  giving  a  bill  of 
particulars  and  directing  the  agent  of  the  carrier  to  deliver 
them  to  his  agent,  is  sufficient  to  charge  the  carrier  for  a 
conversion.  37  Cal.  630. 


708  JUSTICES'  TREATISE. 

CHAPTER     LXXXIII. 

SUNDAYS. 

SECTION  1.  Barbarous  and  noisy  amusements  were  pro 
hibited  by  the  act  of  March  16th,  1855  (50),  which  in  said 
act  are  enumerated,  "as  getting  up  or  aiding  in  getting  up, 
or  opening  of,  any  bull,  bear,  cock  or  prize,  fight;  horse 
race,  circus,  theater,  bowling  alley,  gambling  house,  room 
or  saloon,  or  any  place  of  barbarous  or  noisy  amusements," 
on  the  Sabbath  day.  The  violation  of  the  law  is  a  mis 
demeanor,  for  the  trial  of  which  justices  have  jurisdiction, 
and  parties  found  guilty  shall  be  punished  by  fine  not  less 
than  ten  nor  more  than  fifty  dollars. 

SEC.  2.  By  the  act  of  May  20th,  1861  (655),  all  stores, 
workshops,  bars,  saloons,  banking-houses  or  other  places 
of  business  for  the  transaction  of  business  therein,  except 
hotels,  boarding-houses,  restaurants,  taverns,  livery  stables, 
retail  drug  stores,  and  such  manufacturing  establishments 
as  are  necessarily  kept  in  continual  operation  to  accomplish 
the  business  thereof,  and  except  the  sale  of  milk,  fresh 
meats,  fresh  fish  and  vegetables,  must  be  closed  on  Sun 
days.  Violations  of  this  act  shall  be  punished  by  fine  of 
not  less  than  five  nor  more  than  fifty  dollars,  and  the 
offender  may  be  prosecuted  either  by  complaint  or  indict 
ment  by  a  grand  jury,  and  all  fines  collected  shall  be  paid 
into  the  common  school  fund.  This  act  was  decided  con 
stitutional.  18  Col.  678. 

SEC.  3.  By  the  act  of  March  27th,  1862  (90),  all  places 
for  the  sale  of  meats,  game  and  vegetables,  or  other  market 
products,  are  to  be  kept  closed  in  the  city  and  county  of 
San  Francisco,  and  any  person  who,  either  by  himself  or 
his  agent,  violates  this  law  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  shall  be  punished  by 
fine  of  fifty  dollars  for  each  and  every  offense,  to  be  recov 
ered  as  othe*  fines  for  misdemeanors  are  recoverable  by 
law,  and  by  imprisonment  until  fine  is  paid. 

SEC.  4.  By  the  act  of  May  2,  1862  (479),  all  bath  houses, 
barber  shops  and  hair-dressing  saloons,  in  the  city  of  San 
Francisco  must  be  closed  at  the  hour  of  one  o'clock  P.M.  of 


SURETIES.  709 

the  Sabbath  day,  and  any  person  who,  by  himself,  agent  or 
servant,  either  directly  or  indirectly,  violates  this  law  is 
deemed  guilty  of  misdemeanor,  and  upon  conviction  shall 
be  fined  not  less  than  fifty  nor  more  than  two  hundred 
dollars,  to  be  recovered  as  in  the  preceding  section. 

SEC.  5.  For  all 'judicial  purposes  Sunday  is  no  day  at 
all.  13  Gal.  341. 

SEC.  6.  Act  concerning  Habeas  Corpus. — Any  writ  or  pro 
cess  authorized  by  this  act  may  be  issued  and  served  on  the 
first  day  of  the  week,  commonly  called  Sunday.  Gen. 
Laivs,  5453. 

SEC.  7.  Contracts  made  in  this  state  on  Sun.day  are  not 
void  because  made  on  Sunday.  26  Cal.  514. 


CHAPTER    LXXXIV. 
SURETIES. 


SURETIES 1-2 

ALLOWANCE  OF  UNDERTAKING  . .  3 


JUSTIFICATION  or  SURETIES 4 

QUALIFICATION  OF 5 


Sureties. 

SECTION  1.  When  a  surety  undertakes  that  his  principal 
shall  pay  any  judgment  recovered  against  him  or  do  a 
specific  act,  the  judgment  against  the  principal  is  conclu 
sive  against  the  surety.  But  in  the  case  of  official  bonds 
the  sureties  undertake  in  general  terms  that  the  principal 
will  perform  his  official  duties;  and  a  judgment  against  the 
officer,  in  a  suit  to  which  they  were  not  parties,  is  not  evi 
dence  against  them.  That  the  sureties  had  notice  of  the 
suit  against  the  principal  amounts  to  nothing,  unless  it  was 
notice  according  to  the  statute  or  unless  they  appear  volunta 
rily  as  parties  to  the  record.  According  to  the  common-law 
rules,  a  plaintiff  cannot,  by  mere  notice,  bring  in  parties  not 
sued  in  action  for  trespass  when  there  is  no  pretense  that 
they  were  trespassers.  Pico  vs.  Webster,  14  Cal.  202. 

SEC.  2.  In  suit  on  a  recognizance  for  the  appearance  of 
a  party  charged  with  crime,  the  sureties  cannot  set  up  as  a 
defense  the  fact  that  the  amounts  in  which  they  justified 


710  JUSTICES'  TREATISE. 

were  insufficient  under  the  statutes.     The  justification  is  no 
part  of  their  contract.     18  Gal.  121. 

Allowance  of  Undertaking. 

SEC.  3.  If  the  justice  find  the  sureties  sufficient  he  shall 
annex  the  examination  to  the  undertaking,  indorse  his  al 
lowance  thereon  and  file  the  same,  and  the  officer  shall 
thereupon  be  exonerated  from  liability.  Gen.  Laws,  5500. 

Justification  of  Sureties. 

SEC.  4.  For  the  purpose  of  justification,  each  of  the 
sureties  shall  attend  before  the  justice  at  the  time  men 
tioned  in  the  notice,  and  may  be  examined  on  oath  on  the 
part  of  the  adverse  party  touching  his  sufficiency,  in  such 
manner  as  the  justice  in  his  discretion  may  think  proper. 
The  examination  shall  be  reduced  to  writing  and  subscribed 
by  the  sureties  if  required.  Gen.  Laws,  5499. 

t 
Qualification  of  Sureties. 

SEC.  5.  The  qualification  of  sureties  on  the  several  un 
dertakings  required  by  the  statute  concerning  arrest,  attach 
ment  and  the  claim  of  the  delivery  of  personal  property, 
shall  be  as  follows : 

1st.  Each  of  them  shall  be  a  resident  and  householder  or 
freeholder  within  the  county. 

2d.  Each  shall  be  worth  double  the  amount  stated  in  the 
undertaking,  over  and  above  all  his  debts  and  liabilities, 
exclusive  of  property  exempt  from  taxation.  Gen.  Laws, 
5498. 


CHAPTER    LXXXV. 
TENDEE. 

SECTION  1.  Tender  and  Payment  of  Money  into  Court.— 
The  statutes  contain  the  following  provision  on  this  subject: 
When,  in  an  action  for  the  recovery  of  money  only,  the 
defendant  alleges  in  his  answer,  that  before  the  commence 
ment  of  the  action  he  tendered  to  the  plaintiff  the  full 
amount  to  which  he  was  entitled,  and  thereupon  deposits 


TENDER.  711 

in  court,  for  the  plaintiff,  the  amount  so  tendered,  and  the 
allegation  be  found  to  be  true,  the  plaintiff  shall  not  re 
cover  costs,  but  shall  pay  costs  to  the  defendant.  Pr.  Act 
506. 

SEC.  2.  In  making  the  payment  into  court,  the  defendant 
should  be  careful  to  pay  a  sufficient  sum  to  defray  the  costs 
at  the  time  incurred.  Generally,  this  can  be  done  by  ob 
taining  from  the  justice  the  amount  of  his  and  constable's 
fees,  and  adding  these  to  the  expense  of  obtaining  the  at 
tendance  of  the  plaintiff's  witness,  and  pay  in  the  aggregate 
of  the  whole.  After  the  money  is  thus  paid  into  court,  the 
defendant  may  answer,  stating  the  payment,  and  may  avail 
himself  of  the  payment,  the  same  as  if  paid  to  the  plain 
tiff  before  suit  was  brought  (3  Cow.  336),  or  he  may  inter 
pose  an  answer,  confessing  the  cause  of  action  to  the  extent 
of  his  payment,  alleging  that  to  have  been  made,  and  such 
other  defense  as  he  pleases  as  to  the  residue.  If  the  de 
fendant  pay  money  into  court  in  a  case  where  he  is  not 
allowed  by  law  to  do  so,  the  plaintiff,  by  taking  it  out,  will 
thereby  waive  the  irregularity,  and  the  effect  of  it  will  then 
be  the  same  as  if  it  had  been  paid  in  on  a  mere  money  de 
mand.  The  defendant  may  pay  money  into  court  upon  one 
or  more  of  several  distinct  causes  of  action  in  a  complaint, 
but  he  cannot  pay  it  on  part  of  a  cause  of  action.  Gra.  Pr. 
N.  Y.,  2  ed.  532,  and  the  cases  there  cited. 

SEC.  3.  Proceedings  after  Payment — Where  money  has 
been  paid  into  court,  the  plaintiff'  may  in  all  cases  take  it 
out,  and  then  either  accept  it  in  satisfaction  of  his  debt 
or  may  proceed  in  his  action.  No  question  of  costs  can  in 
such  case  arise  so  far  as  the  plaintiff's  liability  to  the  de 
fendant  is  concerned,  even  though  the  plaintiff  proceed 
and  is  defeated  in  his  action,  for  he  has  already  received 
the  costs  up  to  the  time  of  payment,  and  he  cannot  be  com 
pelled  to  refund.  If  the  judgment  be  in  favor  of  the 
defendant,  the  statute  gives  him  his  costs  of  defense  sub 
sequent  to  the  time  of  payment. 

SEC.  4.  If  the  plaintiff  proceed  to  trial  and  do  not 
prove  himself  to  have  been  entitled  to  an  amount  beyond 
the  sum  paid  into  court,  he  may  be  nonsuited,  or  have  final 
judgment  go  against  him,  with  costs,  as  in  other  cases. 

f 


712  JUSTICES'  TREATISE. 

But  if  he  wish  to  discontinue  the  action  before  trial  hav 
ing  proceeded  in  it  after  the  money  was  paid  in,  he  may  do 
so  on  payment  to  the  defendant  and  the  costs  he  may  have 
incurred  after  the  payment,  or  he  may  discontinue  as  in 
other  cases,  suffering  judgment  for  costs  to  go  against  him. 

SEC.  5.  Effect  of  Payment  into  Court. — The  rule  is,  that 
payment  of  money  into  court  admi-ts  the  cause  or  causes 
of  action  stated  in  the  complaint  to  the  amount  paid  in 
and  nothing  more.  Beyond  that  amount  the  defendant 
may  make  his  defense;  and  hence,  where  a  complaint  con 
tained  several  distinct  claims  and  the  money  was  paid  in — 
generally,  it  was  held,  that  the  defendant  was  not  thereby 
precluded  from  going  into  evidence  to  show  the  total  fail 
ure  of  the  consideration  of  one  of  the  claims  in  bar  of  the 
action  or  a  partial  failure  in  mitigation  of  damages.  2 
Wend.  431. 

SEC.  6.  The  payment  of  money  into  court  is,  so  far  as 
proceedings  in  justices'  courts  are  concerned,  very  much 
the  same  thing  as  a  tender  after  suit  is  brought.  In  the 
former  case  the  money  is  paid  to  the  justice;  in  the  latter, 
directly  to  the  plaintiff.  An  answer  setting  up  a  tender 
before  the  action  was  commenced,  may  be  in  the  following 
words:  "As  to  the  claims  of  the  plaintiff,  except  ....  dol 
lars  (the  amount  tendered)  of  the  amount,  the  defendant 
avers  he  is  not  indebted  to  said  plaintiff  as  he  hath  com 
plained;  and  as  to  saf& dollars,  he  says  that  after  said 

....  dollars  became  due  and  before  the  commencement  of 
this  suit,  to  wit:  on,  etc.,  he  wras  ready  and  willing  and  of 
fered  and  tendered  to  pay  to  the  plaintiff  the  sum  of 

dollars,  to  receive  which,  the  plaintiff  then  and  there  re 
fused;  and  the  defendant  has  always  before  and  at  and 
since  the  time  of  the  said  tender  and  refusal,  been  and 

still  is  ready  to  pay  to  the  plaintiff  the  said dollars, 

and  now  brings  the  same  into  court,  ready  to  be  paid  to 
him." 

SEC.  7.  In  like  manner  a  tender  may  be  pleaded  to  part 
and  a  set  off  to  the  balance  or  a  payment  or  the  statute  of 
limitations,  and  these  pleas  may  be  to  the  whole  complaint 
or  to  any  separate  cause  of  action  thereon.  In  making  a 
-tender  it  is  not  enough  to  say  "I  am  ready  or  I  am  willing 


TIME.  713 


to  pay  you  the  debt,"  "or  dollars."  The  amount  must  be 
actually  produced  by  the  hand  of  the  tenderer,  unless  he  be 
expressly  told  by  the  teuderee  not  to  produce  it.  The  con 
duct  of  the  tenderee  may,  however,  dispense  with  the  neces 
sity  of  its  actual  production,  as  when  for  some  reason 
which  he  assigns,  says:  "You  need  not  produce  it;  I  will 
not  accept  the  amount."  It  is  always,  however,  safest  to 
produce  the  money  and  offer  it,  and  do  it  in  such  manner 
as  to  be  able  to  prove  the  act  and  the  amount. 

SEC.  8.  On  the  subject  of  a  tender  by  the  vendee  to 
obtain  specific  performance  of  contract,  it  is  held  in  Duff  vs. 
fisher  (15  Cal.  375),  that  the  tender  must  be  stated  with 
particularity  as  to  time.  It  is  not  only  necessary  to  aver  a 
tender,  but  the  pleader  must  aver  his  then  and  continuing 
willingness  to  pay  the  amount  tendered,  and  he  must  bring 
the  money  into  court.  28  Cal.  238;  25  Cal.  502;  34  Cal. 
616;  30  Cal.  486;  26  Cal.  420. 


CHAPTER    LXXXVI. 

TIME. 

SECTION  1.  Perhaps  no  class  of  questions  has  given  rise 
to  so  much  verbal  criticism  as  cases  regarding  the  mode  of 
computing  time.  The  day  of  the  date  is  now  excluded  in 
the  computation  of  time  on  notes  and  bills  of  exchange. 
Of  late,  the  general  rule  of  construction  seems  to  have  been 
to  exclude  the  first  day.  It  would  be  impracticable  to  lay 
down  any  rule  in  advance  applicable  to  every  case  that  may 
arise.  When  the  entire  validity  of  an  instrument  or  a  title 
must  fail  and  the  true  intention  of  the  parties  be  defeated 
unless  the  first  day  be  included,  then  it  should  be  done. 
But  when  a  certain  time  for  deliberation  is  given,  the  ex 
clusive  rule  should  be  adopted.  There  is  no  uniform  rule 
for  the  computation  of  time,  whether  we  reckon  from  an 
event  or  a  date ;  the  courts  generally  including  or  excluding 
the  first  day,  as  it  was  necessary  to  give  effect  to  contracts 
and  carry  out  the  intention  of  the  parties.  8  Cal.  415,  417. 

SEC.  2.  It  is  a  general  rule  that  where  a  statute  specifies 
90 


714  JUSTICES'  TREATISE. 

the  time  within  which  a  public  officer  is  to  perform  an  offi 
cial  act  regarding  the  rights  and  duties  of  others,  it  will  be 
considered  directory  merely,  unless  the  nature  of  the  act  to 
be  performed  or  the  language  of  the  legislature  shows  that 
the  designation  of  the  time  was  intended  as  a  limitation  of 
the  power  of  the  officer;  thus,  where  an  act  requires  a  sheriff 
to  file  a  certificate  of  sale  within  ten  days,  his  omission  or 
neglect  to  do  so  within  the  specified  time  does  not  affect  the 
validity  of  the  sale,  and  where  a  statute  requires  an  act  to 
be  done  by  an  officer  within  a  certain  time  for  a  public  pur 
pose,  though  he  neglect  his  duty  by  allowing  the  precise 
time  to  go  by,  if  he  afterwards  perform,  the  public  shall 
not  suffer  by  the  delay.  But  it  is  otherwise  where  the  de 
lay  does  not  affect  the  rights  of  third  parties,  but  the  party's 
own  right,  as  where  a  party  elected  to  an  office  fails  to 
qualify  by  taking  the  oath  and  filing  the  bond  at  the  time 
and  in  the  manner  required  by  law.  3  Cal.  126,  127. 

SEC.  3.  A  day  is  not  to  be  considered  a  unit  to  the  pre 
judice  of  the  rights  of  a  party,  and  an  examination  should 
be  had  of  the  very  point  of  time  when  an  act  was  done. 
Most  of  the  fiction  about  time  and  the  computation  of  time 
is  not  now  recognized  as  law,  and  especially  by  the  supreme 
court  of  California.  1  Cal.  416. 

SEC.  4.  Whenever  time  becomes  important  courts  will 
inquire  into  a  day  or  even  a  fractional  portion  of  a  day. 
14  Cal.  571. 


CHAPTER     LXXXVII. 
TBANSFEB    OF    ACTION. 


TRANSFER  or  ACTION  TO  Dis- 

TKICT  COTJET 1-2 

TRANSFER  OF  ACTION  TO  OTHER 

JUSTICE  . .  3 


SECS. 

AFFIDAVIT  TO  TRANSFER 4 

FORM  OF  AFFIDAVIT  . . .  5-6 


Transfer  of  Action  to  District  Court. 

SECTION  1.  The  parties  shall  not  be  at  liberty  to  give 
evidence  upon  any  question  which  involves  the  title  or  pos 
session  of  real  property,  or  the  legality  of  any  tax,  impost, 


TRANSFER  OF  ACTION.  715 

assessment,  toll  or  municipal  fine,  nor  shall  any  issue  pre 
senting  such  question  be  tried  by  said  justice;  and  if  it 
appear  from  the  plaintiff's  own  showing  on  the  trial  or  from 
the  answer  of  the  defendant  verified  by  his  oath,  that  the 
determination  of  the  action  will  necessarily  involve  the  ques 
tion  of  title  or  possession  to  real  property  or  the  legality  of 
any  tax,  impost,  assessment,  toll  or  municipal  fine,  the 
justice  shall  suspend  all  further  proceedings  in  the  action 
and  certify  the  pleadings,  or  if  the  pleadings  be  oral  a 
transcript  of  the  same,  from  his  docket  to  the  district  court 
of  the  county,  and  from  the  time  of  filing  such  pleadings  or 
transcript  with  the  county  clerk  the  district  court  shall  have 
over  the  action  the  same  jurisdiction  as  if  it  were  com 
menced  therein.  Gen.  Laws,  5512. 

SEC.  2.  When  the  determination  of  an  action  involves 
the  question  of  title  or  possession  to  real  property,  the  jus 
tice  cannot  exercise  jurisdiction.  Whether  this  appears 
from  the  plaintiff's  own  showing  or  from  the  answer  of  the 
defendant,  verified  by  his  oath,  the  justice  must  certify  the 
pleadings  to  the  district  court  for  trial.  The  amount  in 
volved  has  no  effect  upon  the  question  of  jurisdiction;  it  is 
the  fact  that  the  title  to  real  property  is  involved  that  de 
termines  it.  In  opening  jurisdiction  the  district  court  must 
be  governed  by  the  whole  record,  and  all  the  presumptions 
are  in  favor  of  the  validity  of  the  proceedings,  and  no  ob 
jection  growing  out  of  the  amount  involved  can  affect  the 
jurisdiction.  Cullenvs.  Langridge  etal.,  17  Cal.  68;  Holman 
vs.  Taylor,  31  Cal.  338 ;  Larue  vs.  Gaskin,  5  Cal.  507;  Doh&rty 
vs.  Thayer,  31  Cal.  140.  The  granting  or  refusing  a  change  of 
venue  cannot  be  received  in  an  application  for  a  mandamus. 
By  this  writ  the  justice  may,  in  case  of  his  refusal,  be  com 
pelled  to  act,  but  his  erroneous  action  cannot  be  thus  cor 
rected.  The  remedy  is  by  appeal.  Flagley  vs.  Hubbard, 
22  Cal.  34. 

Transfer  of  Action  to  other  Justice. 

SEC.  3.  If  at  any  time  before  the  trial  it  appear  to  the 
satisfaction  of  the  justice  before  whom  the  action  is  brought, 
by  affidavit  of  either  party,  that  such  justice  is  a  material 
witness  for  either  party,  or  if  either  party  make  affidavit 
that  he  has  reason  to  believe  and  does  believe  that  he  can- 


716  JUSTICES'  TREATISE. 

not  have  a  fair  and  impartial  trial  before  such  justice,  by 
reason  of  the  interest,  prejudice  or  bias  of  the  justice,  the 
action  may  be  transferred  to  some  other  justice  of  the 
same  or  neighboring  township;  and  in  case  a  jury  be  de 
manded  and  affidavit  of  either  party  is  made  that  he  cannot 
have  a  fair  and  impartial  trial,  on  account  of  the  bias  or 
prejudice  of  the  citizens  of  the  township  against  him,  the 
action  may  be  transferred  to  some  other  justice  of  the  peace 
in  the  county;  but  only  one  transfer  shall  be  allowed  to 
either  party.  The  justice  to  whom  an  action  may  be  trans 
ferred  by  the  provisions  of  this  section  shall  have  and 
exercise  the  same  jurisdiction  over  the  action  as  if  it  liad 
been  originally  commenced  before  him.  The  justice  order 
ing  the  transfer  of  the  action  to  another  justice  shall  im 
mediately  transmit  to  the  latter,  on  payment  by  the  party 
applying  of  all  the  costs  that  have  accrued,  all  the  papers 
in  the  action  together  with  a  certified  transcript  from  his 
docket  of  the  proceedings  therein.  The  justice  to  whom 
the  case  is  transferred"  shall  issue  a  notice  stating  the  time 
and  place  when  and  where  the  trial  will  take  place,  which 
notice  shall  be  served  upon  the  parties  by  any  officer  author 
ized  to  serve  process  in  justice's  court  or  by  any  person 
specially  deputied  by  the  justice  for  that  purpose,  at  least 
one  day  before  the  trial.  Gen.  Laws,  5513. 

Affidavit  for  Transfer. 

SEC.  4.  The  affidavit  for  a  change  of  venue  should  state 
facts  in  such  a  manner  as  to  enable  the  court  to  draw  its 
own  inference  whether  an  impartial  trial  can  be  had  in  the 
particular  case,  admitting  that  a  prejudice  does  exist  in  the 
community  against  the  defendant.  3  Cal.  413. 

Form  of  Affidavit. 

SEC.  5.     The  following  is  a  form  of  affidavit  for  transfer 
of  action : 
In  the  justice's  court  of  the township,  in  the  county  of ,  state  of 


plaintiff, 
against 


defendant. 

State  of  ,  ) 

county  of  j  SS- 

,  of  said  county,  being  duly  sworn,  says :  That  he  is  the  defend- 


TRESPASS.  717 

ant  in  the  above  entitled  action;  that  he  has  reason  to  believe  and  does  be 
lieve,  that  he  cannot  hnve  a  fair  and  impartial  trial  before  the  justice  before 
whom  this  action  is  brought,  by  reason  of  the  interest,  prejudice  and  bias,  of 
the  said  justice  [or,  "that  said  justice  is  a  material  witness  for  the  said  de 
fendant,"  or,  "the  plaintiff  in  said  action,"  or  in  case  a  jury  has  been  de 
manded,  "that  said  affiant  cannot  have  a  fair  and  impartial  trial  on  account 
of  the  bias  and  prejudice  of  the  citizens  of  the  above-named  township  against 
him  "]. 


Subscribed  and  sworn  to  before  me  this day  of ,  A.D.  18. .. 


Justice  of  the  peace  of  said  township. 

SEC.  6.     The  following  is  a  form  of  notice  of  time  and 
place  of  transferred  action : 
In  the  justice's  court  of  ....  township,  in  the  county  of state  of  .... 


plaintiff, 
against  . 


defendant. 

To the  plaintiff  in  the  above-entitled  action,  and the 

defendant  in  said  action: 

You  will  please  take  notice,  that  the  said  action,  transferred  to  the  above- 
entitled  court  from  the  justice's  court  of township,  in  the  county  of , 

is  set  for  trial  before  me,  at  my  court-room  in  said  ....  township,  in  said 
....  county,  on  . . . . ,  the  ....  day  of  .....  A.D.  18 . . ,  at  ....  oclock,  . .  M. 

Dated  . . 


Justice  of  the  peace  of  said  township. 


CHAPTER   LXXXVIII. 
TKESPASS. 

SECTION  1.  In  considering  injuries  referred  to  in  this 
chapter,  it  must  be  remembered  that  the  rules  and  laws 
which  will  be  invoked,  have  not  a  less  binding  force  upon' 
courts  of  the  most  limited  than  upon  those  courts  of 
the  most  extended  jurisdiction.  Under  the  ancient  system 
of  pleading,  cases  embraced  in  the  classification  "  tres 
pass"  found  remedies  in  actions  known  by  that  system, 
as  trespass,  trespass  on  the  case,  detinue  and  replevin. 
With  the  abolition  of  the  ancient  forms  of  action,  under 
and  by  which  the  remedies  furnished  by  each  were  sought, 


718  JUSTICES'  TREATISE. 

the  "civil  action"  or  a  plain  and  "concise  statement  of 
the  facts  constituting  the  cause  of  action"  was  inaugu 
rated — much  more  simple  in  practice,  but  none  the  less 
efficacious  in  its  remedial  agency. 

SEC.  2.  The  subdivisions  of  the  subject  indicated  in 
their  enumeration  are  as  follows : 

1st.  Actions  for  injuries  to  the  person. 

2d.  Actions  for  injuries  to  real  property. 

3d.  Actions  for  taking,  detaining  or  injuring  personal 
property. 

4th.  The  rights  and  liabilities  of  persons  acting  under 
color  of  law  or  legal  process. 

1. — Actions  for  Injuries  to  the  Person. — Justices  have  no 
jurisdiction  of  actions  for  assault  and  battery,  false  im 
prisonment,  libel,  slander,  malicious  prosecution  and  se 
duction,  or  of  cases  of  willful  direct  injury  to  the  person, 
but  are  limited  to  cases  where  the  injury  is  a  consequence 
of  some  wrongful  or  negligent  act;  such  act  may  be  com 
mitted  by  the  defendant  or  his  servant  or  agent,  the 
general  rule  being  that  where  any  one  does  an  act  either 
personally  or  by  his  servant  which  is  unlawful,  or  if  it 
be  lawful,  if  he  does  it  in  such  a  careless  and  negligent 
manner  that  injury  results  to  others  he  is  responsible  for 
it.  If  the  matter  complained  of  be  the  result  of  gross 
neglect,  the  defendant  will  be  liable,  even  though  the 
plaintiff  in  some  degree  contributed  to  it.  Thus,  if  the  de 
fendant  with  his  horse  and  cart  ran  against  another  on 
a  dark  night  and  injure  him — if  he  did  so  by  driving  on 
the  wrong  side  of  the  road  or  street,  he  is  guilty  of  gross 
neglect;  or,  where  an  aged  or  lame  man  or  an  infant  be  in 
a  road  or  street  in  the  day  time,  when  he  could  see  objects 
in  his  way,  and  he  run  against  them  and  injure  them,  he 
will  be  prima  facie  guilty  of  gross  neglect.  The  defendant 
in  such  case  could  defend  himself  only  by  showing  that 
the  act  was  not  voluntary  or  willful  on  his  part.  21  Wend. 
615.  Accidents  which  may  be  the  result  of  a  slight  degree 
of  negligence  may  be  actionable,  as  where  a  man  builds  a 
wall  so  unskillfully  that  it  falls  and  injures  another,  or 
where  he  digs  a  pit  in  the  highway  into  which  another 
falls.  A  master  may  be  liable  for  injuries  occasioned  by 


TRESPASS.  719 

the  negligence  of  his  servant,  except  it  be  the  result  of  a 
willful  or  malicious  act  of  the  servant.  If,  however,  it  be  the 
wrongful,  willful  act  of  a  servant  of  a  common  carrier  of 
passengers,  the  owner  of  the  carriage  will  be  responsi 
ble  for  injuries  the  passengers  may  suffer.  19  Wend.  343. 
Where  an  injury  is  sustained  from  an  animal  known  by  the 
owner  to  be  dangerous  he  will  be  liable,  although  he  may 
have  used  means  to  secure  it,  if  the  means  employed  were 
ineffectual.  Every  man  may  keep  a  dog  for  the  protection 
of  his  house  and  may  cautiously  use  him  for  that  purpose, 
and  if  any  one  go  into  his  yard  at  night  and  be  bitten  no 
action  will  lie ;  but  when  a  person  keeps  a  ferocious  dog 
and  knowingly  permits  him  to  worry  people  passing  on  a 
road  leading  by  his  premises  or  even  passing  over  his  fields 
in  day  time,  although  technical  trespassers,  the  owner  has 
been  held  liable  for  injury  committed  by  him.  19  Wend. 
496. 

2. — Actions  /or  Injuries  to  Real  Property. — This  class  of 
actions  may  be  maintained  for  any  injuries  which  may  be 
committed  to  real  estate,  whether  direct  or  consequential; 
and  in  all  cases  where  an  unlawful  and  wrongful  act  is  com 
mitted  upon  the  real  property  of  another  the  law  implies 
an  injury,  and  in  an  action  for  it  nominal  damages  must  be 
given.  1  Rawle,  27. 

3. — Of  Actions  for  Taking,  Detaining  or  Injuring  Personal 
Property. — The  term  personal  property  includes  moneys, 
goods,  chattels,  things  in  action  and  evidences  of  debt, 
and  with  the  exception  of  real  estate,  it  includes  every 
thing  in  which  one  may  have  a  valuable  interest.  This  in 
terest  may  exist  in  domestic  animals  of  the  lowest  as  well 
as  of  the  highest  grade,  as  cats,  dogs  or  poultry,  or  even 
in  animals  of  a  wild  nature  which  have  been  tamed,  or  if 
they  have  only  been  captured  hft  has  an  interest  in  them 
until  they  regain  their  liberty.  Where  personal  property 
belongs  exclusively  to  any  person  he  is  said  to  have  a  gen 
eral  property  in  it.  Where  he  holds  goods  as  a  bailee  or 
has  only  a  temporary  interest  in  it,  he  is  said  to  have  a 
special  property  in  it.  In  either  case  he  may  maintain  an 
action  either  for  taking,  detaining  or  injuring  it. 

4. — Persons  acting  under  color  of  law  or  legal  process 


720  JUSTICES'  TREATISE. 

have  an  interest  in  property  which  entitles  them  to  main 
tain  an  action  for  injury  done  to  it.  Their  interest  in  it  may 
be  only  temporary,  but  they  may  maintain  an  action  against 
any  one  who  takes,  detains  or  injures  it,  and  proof  of  the 
execution  and  levy  is  sufficient  to  sustain  this  action  with 
out  showing  the  judgment. 


CHAPTER   LXXXIX. 


TEIAL. 


SECS.  SECS. 


TRIAL,  GENEEALLY 1-4 

IN  WHAT  TOWNSHIP  OK  CITIES 

ACTIONS  TO  BE  BROUGHT  . .     5-12 

BIGHT  OF  TEIAL  BY  JURY 13-15 

WHEN  A  JUEY  SHALL  BE  DEEM 
ED  WAIVED 16-17 

WRIT  or  VENIRE  AND  IMPANEL 
ING  JURY. .  .  18-22 


QUALIFICATION  OF  JURORS 23-25 

PEREMPTORY  CHALLENGE 26-27 

CHALLENGE  FOR  CAUSE 28-30 

DUTY  AND  POWER  OF  JURY.  ...  31 
PROVINCE  OF  JUSTICE  AND  JURY  32-39 
POLLING  THE  JUEY  IN  CIVIL 

CASES . .  40 


Trial,  Generally. 

SECTION  1.  Parties  should  not  be  held  to  any  great 
strictness  in  proceedings  before  justices  of  the  peace.  23 
Gal  138. 

SEC.  2.  A  liberal,  and  not  a  restricted  construction,  will 
be  given  to  the  proceedings  of  justices.  5  Humph.  581. 

SEC.  3.  "Where  the  trial  by  jury  is  dispensed  with,  the 
justice  must,  nevertheless,  observe  the  course  of  the  com 
mon  law  in  trials.  3  Hurpli.  121. 

SEC.  4.  The  court  not  only  performs  its  peculiar  and 
appropriate  duty  of  deciding  the  law,  but  also  discharges 
the  functions  of  a  jury  and  passes  upon  the  facts.  If 
counsel  desire  to  present  for  consideration  certain  points  of 
law  as  applicable  to  the  facts  established,  or  sought  to  be 
established,  upon  which  the  court  might  be  called  to  charge 
a  jury  were  there  a  jury  in  the  case,  the  proper  course  is  to 
present  them  in  the  form  of  propositions,  preceding  them 
with  a  statement  that  counsel  makes  the  following  points — 
or,  counsel  contends  as  follows.  20  Cal.  163. 


«         TRIAL.  721 

In  what  Towc ships  or  Cities  Actions  to  be  Brought. 

SEC.  5.  No  person  shall  be  held  to  answer  to  any  sum 
mons  issued  against  him  from  a  justice's  court,  in  civil 
action,  in  any  township  or  city  other  than  the  one  in  which 
he  shall  reside,  except  in  the  cases  following : 

1st.  Where  there  shall  be  no  justice's  court  for  the  town 
ship  or  city  in  which  the  defendant  may  reside  or  no  justice 
competent  to  act  on  the  case. 

2d.  When  two  or  more  persons  shall  be  jointly  or  jointly 
and  severally  bound  in  any  debt  or  contract,  or  otherwise 
jointly  liable  in  the  same  action,  and  reside  in  different 
townships  or  different  cities  of  the  same  county  or  in 
different  counties,  the  plaintiff  may  prosecute  his  action  in 
a  justice's  court  of  the  township  or  city  in  which  any  of  the 
debtors  or  other  persons  liable  may  reside. 

3d.  In  cases  of  injury  to  the  person  or  to  real  or  per 
sonal  property,  the  plaintiff  may  prosecute  his  action  in 
the  township  or  city  where  the  injury  was  committed. 

4th.  Where  personal  property  unjustly  taken  or  detained 
is  claimed  or  damages  therefor  are  claimed,  the  plaintiff 
may  bring  his  action  in  any  township  or  city  in  which  the 
property  may  be  found  or  in  which  the  property  was  taken. 

5th.  When  the  defendant  is  a  non-resident  of  the  county, 
he  may  be  sued  in  any  township  or  city  wherein  he  may  be 
found. 

6th.  When  a  person  has  contracted  to  perform  any  obli 
gation  at  a  particular  place  and  resides  in  another  county 
or  in  a  township  or  city  of  the  same  county,  he  may  be 
sued  in  the  township  or  city  in  which  such  obligation  is  to 
be  performed  or  in  which  he  resides;  and  for  the  purpose 
of  justices'  courts'  jurisdiction  under  this  clause,  the  town 
ship  or  city  in  which  the  obligation  is  incurred  shall  be 
deemed  to  be  the  township  or  city  in  which  it  is  to  be  per 
formed,  unless  there  is  a  special  contract  to  the  contrary. 

7th.  When  the  foreclosure  of  a  mortgage  or  the  enforce 
ment  of  a  lien  upon  personal  property  is  sought  by  the 
action,  the  plaintiff  may  sue  in  the  township  or  city  where 
the  property  is  situated. 

8th.  Any  person  or  perpons  residing  in  the  city  of  San 
91 


722  JUSTICES'  TREATISE. 

Francisco  may  be  held  to  answer  to  any  summons  issued 
against  him  or  them  from  the  court  of  a  justice,  for  any 
township  within  the  corporate  limits  of  the  city  of  San 
Francisco,  in  any  action  or  proceeding  whereof  justices  of 
the  peace  of  the  city  or  county  of  San  Francisco  have  or 
may  have  jurisdiction  by  law  :  provided,  nothing  herein 
contained  shall  be  construed  to  allow  any  justice  of  said 
city  or  county  to  hold  a  court  in  any  other  township  than 
the  one  for  which  he  shall  have  been  elected.  Slat.  1867- 
1868,  551. 

SEC.  6.  Nothing  in  this  act  [preceding  section]  shall  be 
construed  to  preclude  the  bringing  of  an  action  in  justices' 
courts  of  this  state  against  any  party  or  parties  residing  out 
of  the  state.  Stats.  1867-8,  552. 

SEC.  7.  The  principal  place  of  business  of  a  corporation 
is  its  residence,  within  the  meaning  of  that  term  as  used  in 
section  twenty  of  the  practice  act,  fixing  the  place  of  trial. 
Corporations  have  a  local  existence,  like  persons,  and  are 
properly  included  within  the  terms,  citizens,  inhabitants, 
residents  and  the  like.  22  Col.  537,  538. 

SEC.  8.  Whenever  the  fact  of  non-residence  of  both  par 
ties  appears,  the  justice  must  dismiss  the  action.  E.  D. 
Smith,  N.  Y.  244. 

SEC.  9.  Judgment  upon  confession  may  be  entered  up  in 
any  justice's  court  in  the  state  specified  in  the  confession. 
[See  JUDGMENT  AND  CONFESSION.]  Gen.  Laivs,  5467. 

SEC.  10.  Justices'  courts  shall  have  jurisdiction  of  an 
action  upon  the  voluntary  appearance  of  the  parties  with 
out  summons,  without  regard  to  their  residences  or  the 
place  where  the  cause  of  action  arose  or  the  subject-matter 
of  the  action  may  exist.  Gen.  Laius,  5468. 

SEC.  11.  A  party  may  come  in  voluntarily,  and  the  rec 
ord  must  then  show  that  he  appeared  in  court.  If  records 
or  papers  are  lost  their  contents  may  be  proved.  8  Cal.  569. 

SEC.  12.  In  the  case  of  Lowe  vs.  Alexander  (15  Cal.  296) 
the  question  of  jurisdiction  was  discussed,  and  it  was  de 
cided,  by  way  of  distinction  as  a  matter  of  evidence  touch 
ing  the  subject  of  jurisdiction,  "that  power  and  authority 
to  act  shall  be  intended  as  to  courts  of  general  jurisdiction, 
but  as  to  inferior  courts  or  courts  of  limited  jurisdiction, 


TBIAL.  723 

those  who  claim  any  right  or  exemption  under  their  pro 
ceedings  are  bound  to  show  affirmatively  that  they  had 
jurisdiction."  Hence  the  necessity  for  great  particularity 
in  complying  with  the  demands  of  the  statute,  that  "no 
person  shall  be  held  to  answer  to  any  summons  issued 
against  him  from  a  justice's  court,  in  a  civil  action,  in  any 
township  or  city  other  than  the  one  in  which  he  shall  re 
side,  except  in  cases  enumerated  in  the  statute,  and  that  a 
judgment  rendered  by  a  justice  may  be  entitled  to  respect 
as  such  the  record  itself  must  show  facts  establishing  juris 
diction."  In  other  words,  the  record  must  show  that  the  suit 
was  brought  in  the  proper  township,  and  the  question  will 
not  be  inquired  into  as  to  whether  the  suit  was  brought  in 
the  proper  township  or  whether  the  defendant  waived  all 
objections  and  appeared,  or  appearing  objected,  but  the 
facts  establishing  jurisdiction  must  sufficiently  appear  upon 
the  face  of  the  record. 

Right  of  Trial  by  Jury. 

SEC.  13.  The  constitution  provides :  "The  right  of  trial 
by  jury  shall  be  secured  to  all  and  remain  inviolate  forever; 
but  a  jury  trial  may  be  waived  by  the  parties  in  all  civil 
cases  in  the  manner  to  be  prescribed  by  law."  Constitution, 
Art.  1,  Sec.  3 ;  Gen.  Laws,  87. 

SEC.  14.  In  all  cases  at  law  the  parties  have  a  right  to 
demand  and  enforce  a  trial  by  jury.  5  Cal.  294. 

SEC.  15.  The  language  of  the  constitution  is  explicit; 
and  it  is  evident  that  the  framers  of  that  instrument  in 
tended  to  give  the  benefit  of  the  trial  by  jury  in  every  case. 
The  mere  silence  of  an  attorney  cannot  amount  to  a  waiver 
of  a  constitutional  right.  The  waiver  must  appear  affirma 
tively  and  in  the  manner  prescribed  by  law,  and  not  by  im 
plication.  A  right  which  the  law  declares  in  positive  terms 
to  be  waived  cannot  be  restored  by  the  action  of  any  judi 
cial  tribunal.  2  Cal.  90. 

When  a  Jury  shall  be  Deemed  Waived. 

SEC.  16.  A  trial  by  jury  shall  be  demanded  at  the  time 
of  joining  issue;  and  shall  be  deemed  waived  if  neither  par 
ty  then  demand  it.  When  demanded,  the  trial  of  the  case 


724  JUSTICES'  TREATISE. 

shall  be  adjourned  until  a  time  and  place  fixed  for  the  re 
turn  of  the  jury.  If  neither  party  desire  an  adjournment, 
the  time  and  place  shall  be  determined  by  the  justice  and 
shall  be  on  the  same  day  or  within  the  next  two  days.  Gen. 
Laws,  5518. 

SEC.  17.  Where,  after  both  parties  have  avowed  them 
selves  ready,  the  justice  tells  the  plaintiff  to  go  on,  and  the 
defendant  admits  a  part  of  plaintiff's  account  and  a  witness 
for  the  plaintiff  is  partly  sworn,  it  is  too  late  for  the  defend 
ant  to  demand  a  venire.  1  Coio.  235. 

Writ  of  Venire. 

SEC.  18.  A  justice  cannot  issue  a  venire  before  the  ap 
pearance  of  the  defendant;  but  if  a  jury  has  been  summon 
ed  and  the  defendant  do  not  appear,  the  jury  may  be  dis 
missed  and  the  cause  tried  by  the  justice.  2  South.  501. 

Juries  (Except  in  the  Counties  of  Plumas,  Humboldt,  Klamath, 
Del  Norte,  Butte,  Siskiyou,  Nevada,  El  Dorado,  Tehania,  Co- 
lusa,  Tulare,  Sutter,  Trinity,  Sierra,  Lassen  and  Kern). 

SEC.  19.  In  any  civil  or  criminal  action  pending  before 
any  justice  of  the  peace  in  this  state,  triable  by  jury,  either 
party  to  the  action  before  the  commencement  of  the  trial 
may  demand  a  jury  therein.  "When  such  demand  shall  be 
made  it  shall  be  the  duty  of  such  justice  to  fairly  and  impar 
tially  write  the  names  of  twenty-four  persons  on  a  slip  of 
paper,  residents  of  the  township,  each  competent  and  qual- 
fied  as  provided  in  sections  first  and  second  of  this  act. 
From  said  list  the  defendant,  his  agent  or  attorney,  shall 
strike  off  one  name,  then  the  plaintiff,  his  agent  or  attorney, 
shall  strike  off  one  name,  and  so  on,  alternately,  until  but 
twelve  names  remain  on  said  list.  The  twelve  names  left  on 
said  list  shall  be  summoned  as  the  jury  in  said  action :  pro 
vided,  that  in  a  civil  action  the  parties  may  agree  upon  any 
number  of  jurors  less  than  twelve,  but  not  under  three,  and 
in  such  case  the  alternate  striking  off  shall  continue  as 
aforesaid  until  the  agreed  number  shall  be  left  remaining, 
which  shall  be  summoned.  If  either  party  refuse  or  neglect 
to  strike  off  the  names  as  aforesaid,  the  justice  shall  strike 
off  the  same  in  behalf  of  such  refusing  party.  When  a  jury 


TRIAL.  725 

is  chosen  tlie  justice  may  continue  the  action  to  siich  time 
as  the  parties  may  agree  upon,  or  to  such  convenient  time 
as  to  allow  the  officer  to  summon  said  jurors.  Neither 
party  in  a  civil  action  shall  be  entitled  to  a  jury  in  a  jus 
tice's  court  when  the  defendant  does  not  dispute  the  plaint 
iff's  cause  of  action,  and  when  the  plaintiff  does  not  dispute 
the  defendant's  defense,  offset  or  counter  claim.  When 
a  jury  shall  be  chosen  as  provided  in  this  section,  the 
justice  of  the  peace  shall  immediately  issue  a  writ  of  venire, 
directed  to  the  constable  or  sheriff  to  summon  said  chosen 
jurors  to  be  and  appear  before  such  justice  at  the  time  and 
place  in  said  writ  mentioned.  Said  writ  shall  be  substan 
tially  as  follows : 

State  of ,  I 

County  of ,  township  of ,  f  ss' 

Before   ....,  justice   of  the  peace.     To  the  sheriff  or  constable  of  said 
county,  greeting: 

You  are  hereby  commanded  to  summon  [here  insert  the  names  of  jurors 

chosen]  to  be  and  appear  at  my  office  in  said  township ,  at ,  on  the 

....  day  of  ...-.,  A.D.  18. .,  to  act  as  jurors  in  a  civil  (or  criminal)  action, 
wherein  ....  is  plaintiff  and  ....  is  defendant;  and  of  this  writ  make  legal 
service  and  due  return. 

Dated  ....  day  of  . . . . ,  A.D.  18 . . 


Justice  of  the  peace. 

It  shall  be  the  duty  of  the  constable  or  the  sheriff  upon 
receiving  the  writ  of  venire  mentioned  in  the  last  section, 
to  forthwith  proceed  and  faithfully  summon  each  of  said 
jurors  personally,  and  he  shall  without  delay  return  to  the 
justice  said  writ,  with  his  indorsement  thereon,  specifying 
the  persons  summoned. 

Jurors  in  Plumas,  Humboldt,  Klamath,  Del  Norte,  Butte,  Siskiyou, 
Nevada,    El   Dorado,    Tehama,    Colusa,    Tulare,   Sutter,   Trinity, 

Sierra,  and  Lassen  Counties. 

« 

SEC.  20.  A  trial  jury  shall  be  summoned  for  a  justice's 
court  from  the  citizens  of  its  township  who  are  qualified  to 
act  as  jurors  whenever  specially  ordered  by  the  court :  pro 
vided,  that  in  civil  actions  the  parties  may  agree  upon  any 
number  of  jurors  less  than  twelve,  but  not  under  three. 
The  jurors  for  a  justice's  court  shall  be  summoned  by  its 
constable.  The  officer  shall  return  to  the  court  a  list  of 


726  JUSTICES'  TREATISE. 

the  names  of  the  persons  summoned,  with  his  certificate  of 
the  names  of  services.  The  list  shall  be  called  over  at  the 
appointed  time  for  the  trial.  If  a  sufficient  number  of  com 
petent  and  indifferent  jurors  do  not  attend,  or  if  any  of  them 
shall  be  excluded,  exempted  or  excused  from  any  cause,  the 
justice  shall  direct  the  constable  to  summon  others  from 
the  vicinity,  but  not  from  the  bystanders,  sufficient  to  com 
plete  the  jury.  The  justice  before  whose  court  jurors  are 
summoned  may  impose  a  fine  not  exceeding  fifty  dollars  for 
the  neglect  of  a  juror  without  reasonable  cause  to  attend. 
The  officer  before  whom  a  jury  of  inquest  is  summoned  may 
impose  a  fine  upon  a  juror  for  non-attendance,  in  the  same 
manner  and  subject  to  the  same  conditions  as  jurors  may  be 
fined  for  non-attendance  in  a  justice's  court.  If  a  sufficient 
number  of  competent  and  indifferent  jurors  do  not  attend, 
the  justice  shall  direct  others  to  be  summoned  from  the 
vicinity,  and  not  from  the  bystanders,  sufficient  to  complete 
the  jury.  Gen.  Laws,  5520. 

SEC.  21.  At  the  time  appointed  for  the  trial  the  justice 
shall  proceed  to  call,  from  the  jurors  summoned,  the  names 
of  the  persons  to  constitute  the  <  jury  for  the  trial  of  the 
isue.  The  jury,  by  consent  of  the  parties,  may  consist  of 
any  number  not  more  than  twelve  nor  less  than  three.  Gen. 
Laws,  5519. 

SEC.  22.  When  a  case  in  a  district  court  was  called  for 
trial  the  plaintiffs  were  not  present,  and  thereupon  the  de 
fendants,  who  had  pleaded  a  set-off  to  the  demand  in  suit, 
consented  that  the  trial  be  conducted  with  four  jurors  only. 
That  number  was  accordingly  impaneled,  the  trial  proceed 
ed  with  and  a  verdict  obtained  in  their  favor  for  two  hun 
dred  dollars.  A  motion  to  set  aside  the  verdict  and  for  a 
new  trial,  based  on  the  ground  that  the  trial  was  had  with 
only  four  jurors,  was  made  and  overruled;  and  from  the  or 
der  overruling  the  motion  and  from  the  judgment  on  the 
verdict  an  appeal  was  taken.  The  supreme  court  say:  "The 
constitution  of  the  state  declares  that  '  the  right  of  trial  by 
jury  shall  be  secured  to  all  and  remain  inviolate  forever ; 
but  a  jury  trial  may  be  waived  by  the  parties  in  all  civil 
cases  in  the  manner  to  be  prescribed  by  law.'  Art.  1  Sec. 
3.  The  one  hundred  and  seventy-ninth  section  of  the  prac- 


TRIAL.  727 

tice  act  prescribes  the  manner  in  which  a  jury  may  be 
waived,  and  among  other  modes,  by  the  parties  failing  to 
appear  for  trial.  The  one  hundred  and  fifty-ninth  section 
of  the  same  act  fixes  the  number  of  persons  who  shall  con 
stitute  a  trial  jury  at  twelve,  unless  the  parties  consent  to  a 
less  number,  and  provides  that  they  may  consent  to  any 
number  not  less  than  three.  These  provisions  determine 
the  question  raised  by  the  plaintiffs.  Their  failure  to  ap 
pear  at  the  trial  operated  as  a  consent  on  their  part  that  the 
issue  should  be  tried  by  the  court  without  a  jury.  The  de 
fendants  could  have  made  this  consent  mutual  by  submit 
ting  the  case  to  the  court,  but  as  they  did  not  choose  to 
take  that  course  and  called  for  a  jury  they  were  bound  to 
take  the  number  required  by  law.  Twelve  is  that  number, 
and  a  less  number  will  not  constitute  a  legal  jury  without 
the  consent  of  the  adverse  party.  Such  consent  must  be 
express  and  entered  at  the  time  in  the  minutes  of  the  clerk. 
It  cannot  be  inferred  from  the  mere  absence  of  the  adverse 
party.  Such  absence  is  a  consent  under  the  statute  to  a 
trial  by  the  court,  but  nothing  further.  A  party  might  well 
give  such  a  consent  who  would  object  if  a  jury  were  to  be 
called  to  take  a  less  number  of  jurors  than  twelve.''  18 
Col.  410,  411. 

Qualification  of. 

SEC.  23.  The  following  are  the  qualifications  prescribed 
by  statute  to  render  a  person  competent  to  act  as  juror.  A 
person  shall  be  competent  and  qualified  to  act  as  grand  or 
trial  juror,  except  in  the  counties  of  Plumas,  Humboldt, 
Klamath,  Del  Norte,  Butte,  Siskiyou,  Nevada,  El  Dorado, 
Tehama,  Colusa,  Tulare,  Sutter,  Trinity,  Sierra  and  Las- 
sen,  if  he  be: 

1st.  A  citizen  of  the  United  States,  a  qualified  elector  of 
the  county  and  a  resident  of  the  township  at  least  three 
months  before  being  selected  and  returned. 

2d.  In"possession  of  his  natural  faculties. 

3d.  Who  has  sufficient  knowledge  of  the  language  in 
which  the  proceedings  of  the  courts  are  had :  provided,  that 
the  requirements  of  this  third  subdivision  of  section  twen 
ty-three  shall  not  apply  to  the  counties  of  Monterey,  San 


728  JUSTICES'  TREATISE. 

Luis  Obispo,  Santa  Barbara,  Los  Angeles,  San  Bernardino 
and  San  Diego. 

4th.  Assessed  on  the  last  assessment-roll  of  his  township 
or  county  on  real  or  personal  property  or  both,  belonging 
to  him,  if  a  resident  at  the  time  of  the  assessment. 

A  person  shall  be  competent  and  qualified  to  act  as  grand 
or  trial  juror  in  the  counties  of  Plumas,  Humboldt,  Kla- 
math,  Del  Norte,  Butte,  Siskiyou,  Nevada,  El  Dorado,  Te- 
hama,  Colusa,  Tulare,  Sutter,  Trinity,  Sierra  and  Lassen, 
if  he  be: 

1st.  A  citizen  of  the  United  States,  a  qualified  elector  of 
the  county  and  a  resident  of  the  township  at  least  three 
months  before  being  selected  and  returned. 

2d.  In  possession  of  his  natural  faculties  and  have  suffi 
cient  knowledge  of  the  language  in  which  the  court  is  held. 

A  person  shall  be  incompetent  and  disqualified  from  act 
ing  or  serving  as  a  grand  or  trial  juror  if  he  be : 

1st.  A  person  not  possessing  the  qualifications  of  section 
twenty-three  of  this  act. 

2d.  A  person  convicted  of  a  felony  or  misdemeanor  in 
volving  moral  turpitude. 

3d.  A  professional  gambler,  following  gambling  for  a 
business. 

A  person  shall  be  exempt  from  liability  to  act  as  grand  or 
trial  juror,  and  shall  not  be  selected  if  he  be : 

1st.  A  judicial,  civil  or  military,  officer  of  the  United 
States  or  of  the  state  of  California. 

2d.  A  person  holding  a  county  office. 

3d.  An  attorney  and  counselor  at  law. 

4th.  A  minister  of  the  gospel  or  a  priest  of  any  denom 
ination. 

5th.  A  teacher  in  a  college,  academy  or  school. 

6th.  A  practicing  physician. 

7th.  An  officer,  keeper  or  attendant,  of  an  alms-house, 
hospital,  asylum  or  other  charitable  institution,  in  this 
state.  N 

8th.  Any  person  engaged  in  the  performance  of  duty  as 
officer  or  attendant  of  a  county  jail  or  the  state  prison. 

9th.  A  captain,  master  or  other  officer,  or  any  person  em 
ployed  on  board  of  a  steamer,  vessel  or  boat,  navigating 
the  waters  of  this  state. 


TRIAL.  729 

10th.  An  express  agent,  mail  carrier,  telegraph  operator 
or  keeper  of  a  public  ferry  or  toll-gate. 

llth.  A  person  otherwise  exempt  by  law.  Gen.  Laws, 
3870-3872,  3907-3909. 

SEC.  24.  According  to  the  statute,  a  person  shall  not  be 
competent  as  a  juror  unless  "an  elector  of  the  county  in 
which  he  is  returned."  To  be  an  elector  of  a  county,  a  per 
son  must  be  a  resident  within  it  for  thirty  days.  The  ob 
jection  to  a  person  not  such  resident — as  a  juror — is  good, 
and  no  peremptory  challenge  is  necessary.  3  Cal.  107,  108. 

SEC.  25.  The  statute  requires  the  juror  to  be  an  elector 
of  the  county  for  which  he  is  summoned,  and  he  cannot  be 
an  elector  unless  he  is  a  resident.  Residence  depends  upon 
intention  as  well  as  fact,  and  mere  inhabitancy  for  a  short 
period  against  the  intention  of  acquiring  a  domicil  would 
not  make  a  resident  within  the  meaning  of  the  law,  so  as  to 
constitute  an  elector.  4  Cal.  175,  176. 

Peremptory  Challenge. 

SEC.  26.  Either  party  may  challenge  the  jurors;  but  when 
there  are  several  parties  on  either  side,  they  shall  join  in  a 
challenge  before  it  can  be  made.  The  challenges  shall  be 
to  individual  jurors,  and  shall  either  be  peremptory  or  for 
cause.  Each  party  shall  be  entitled  to  four  peremptory 
challenges.  Pr.  Act.  161. 

SEC.  27.  A  justice  has  no  right  of  his  own  mere  motion, 
without  any  exception  being  taken  by  either  party,  to  chal 
lenge  the  panel  of  jurors  and  issue  a  new  venire.  15  Johns. 
169. 

Challenge  for  Cause. 

SEC.  28.     The  following  are  grounds  of  challenge: 

1st.  A  want  of  any  of  the  qualifications  prescribed  by 
statute  to  render  a  person  competent  as  a  juror. 

2d.  Consanguinity  or  affinity  within  the  third  degree  to 
either  party. 

3d.  Standing  in  the  relation  of  guardian  and  ward,  mas 
ter  and  servant,  employer  and  clerk,  or  principal  and  agent, 
to  either  party,  or  being  a  member  of  the  family  of  either 
party,  or  a  partner  in  the  business  with  either  party,  or 
being  security  on  any  bond  or  obligation  for  either  party. 
92 


730  JUSTICES'  TREATISE. 

4th.  Having  served  as  a  juror  or  been  a  witness  on  a 
previous  trial  between  the  same  parties  for  the  same  cause 
of  action. 

5th.  Interest  on  the  part  of  the  juror  in  the  event  of  the 
action  or  in  the  main  question  involved  in  the  action,  ex 
cept  the  interest  of  the  juror  as  a  member  or  citizen  of  a 
municipal  corporation. 

6th.  Having  formed  or  expressed  an  unqualified  opinion 
or  belief  as  to  the  merits  of  the  action. 

7th.  The  existence  of  a  state  of  mind  in  the  juror  evinc 
ing  enmity  against  or  bias  to  either  party.  Pr.  Act,  162. 

SEC.  29.  Generally  in  impaneling  a  jury  each  party 
has  a  right  to  put  questions  to  a  juror  to  show  not  only 
that  there  exists  proper  grounds  for  a  challenge  for  cause, 
but  to  elicit  facts  to  enable  him  to  decide  whether  he  will 
make  a  peremptory  challenge.  Watson  vs.  Whitney,  23 
Cal.  375. 

SEC.  30.  Challenges  for  cause  shall  be  tried  by  the  jus 
tice  in  a  summary  manner,  who  may  examine  the  juror 
challenged  and  witness.  Gen.  Laics,  5521. 

Duty  and  Power  of  Jury. 

SEC.  31.  After  hearing  the  charge,  the  jury  may  either 
decide  in  court  or  retire  for  deliberation.  Upon  retiring 
for  deliberation,  the  jury  may  take  with  them  all  papers 
(except  depositions)  which  have  been  received  as  evidence 
in  the  cause,  or  copies  of  such  papers  as  ought  not,  in  the 
opinion  of  the  court,  to  be  taken  from  the  person  having 
them  in  possession;  and  they  may  also  take  with  them 
notes  of  the  testimony  or  other  proceedings  on  the  trial, 
taken  by  themselves  or  any  of  them;  but  none  taken  by 
any  other  person.  After  the  jury  have  retired  for  delibera 
tion,  if  there  be  a'  disagreement  between  them  as  to  any 
part  of  the  testimony  or  if  they  desire  to  be  informed  of 
any  point  of  law  arising  in  the  cause,  they  may  require  the 
officer  to  conduct  them  into  court.  Upon  their  being 
brought  into  court,  the  information  required  shall  be  given 
in  the  presence  of  or  after  notice  to  the  parties  or  counsel. 
Gen.  Laivs,  5106,  5108. 


TRIAL.  731 

Province  of  Justice  and  Jury  in  the  Trial  of  Civil  Cases. 

SEC.  32.  It  is  not  the  province  of  a  judge  where  a  jury 
tries  the  case  to  pronounce  upon  the  facts.  4  Cal.  201;  23 
Col.  482;  14  Cal.  418. 

SEC.  33.  It  is  error  for  the  court  to  submit  to  a  jury  the 
question  of  the  legal  effect  of  written  documents  offered 
in  evidence  during  the  trial.  24  Cal.  269. 

SEC.  34.  Juries  are  used  as  instruments  to  determine 
facts  unknown  to  the  courts;  but  a  court  does  not  require 
the  verdict  of  a  jury  to  inform  it  of  facts  accruing  in  the 
presence  of  the  court  itself.  9  Cal.  21. 

SEC.  35.  The  credibility  of  any  and  all  statements  of  a 
witness  is  a  matter  for  the  jury,  and  the  court  should  not 
interfere  with  their  province  in  this  respect.  It  does  not 
follow  because  a  witness  who  is  impeached,  or  even  if  not 
impeached  is  supported  in  some  degree  or  in  some  portions 
of  his  evidence  by  other  witnesses,  that  the  jury  is  bound, 
as  a  matter  of  law,  to  believe  everything  the  witness  says. 
Many  things  may  characterize  a  cause  or  the  testimony  of  a 
witness  which  deny  or  impair  credit  to  his  assertions;  and 
the  jury  should  be  left  free  to  pass  upon  all  the  circum 
stances  and  considerations  in  connection  with  his  testimony 
and  assign  to  such  statements  their  true  weight  and  value 
as  proof.  A  witness  may  be  supported  in  a  particular  part 
of  his  testimony,  and  thus  supported  the  jury  may  believe 
that  part,  while  in  other  respects  they  may  think  him 
altogether  incredible.  16  Cal.  113;  21  Cal.  266. 

SEC.  36.  If  the  jury  find  a  verdict  of  damages  for  the 
defendant  in  a  case  in  which  he  is  not  entitled  to  damages, 
the  justice  may  enter  a  remittilur  damna,  and  give  judgment 
for  the  defendant  generally.  4  Johns.  414. 

SEC.  37.  In  general,  the  jury  possess  the  right  to  alter 
their  verdict  and  the  parties  a  right  to  poll  them  at  any 
time  previous  to  its  record.  But  it  is  doubtful  whether  a 
jury,  after  agreeing  upon  a  sealed  verdict  and  separating, 
can  change  it,  except  in  mere  matters  of  form.  The  oppor 
tunities  of  tampering  with  juries  after  separation  are  so  nu 
merous,  and  in  important  cases  the  temptation  so  great 
and  the  ability  of  detection  so  slight,  as  to  make  it  a  matter 


732  JUSTICES'  TREATISE. 

of  grave  doubt  whether  sound  policy  does  not  require  an 
adherence  to  the  verdict  as  sealed,  even  as  against  a  subse 
quent  dissent  of  one  or  more  of  the  jurors.  12  Gal.  494. 

SEC.  38.     The  affidavits  of  jurors  will  not  be  allowed  to 
contradict  their  verdict.     5  Col.  42. 

SEC.  39.     A  juror  cannot  be  allowed  to  impeach  his  own 
verdict.     4  Cat.  103. 

Polling  the  Jury. 

SEC.  40.  The  only  question  presented  for  consideration 
is  whether  a  party  has  the  right  in  a  civil  action  to  poll  the 
jury  after  their  verdict  is  recorded.  In  criminal  cases  the 
statute  provides  that  after  the  verdict  is  rendered  and  be 
fore  it  is  recorded,  the  jury  may  be  polled  on  the  require 
ment  of  either  party.  In  civil  cases  the  statute  as  to  polling 
the  jury  is  silent.  In  some  states  a  poll  may  be  had  in  civil 
cases  upon  the  demand  of  either  party  before  the  verdict  is 
recorded;  in  other  states  the  proceeding  is  allowed  only 
under  special  circumstances.  The  authorities  show  that 
the  proceeding  is  not  necessarily  an  incident  of  the  trial, 
which  a  party  may  at  his  option  insist  upon,  but  on  the 
contrary,  that  it  is  a  matter  resting  entirely  in  the  discre 
tion  of  the  court — but  a  proceeding  which  the  court  will 
generally  allow  when  there  are  circumstances  of  suspicion 
attending  the  delivery  of  the  verdict.  Thus,  in  Landes  vs. 
Dayton  ("Wright's  Eep.  659),  the  supreme  court  of  Ohio 
said  :  "  We  do  not  recognize  any  right  in  a  party  in  a  civil 
case  to  poll  a  jury — though  we  sometimes  allow  it  if  the 
verdict  is  delivered  under  circumstances  of  suspicion.  It 
is,  we  think,  mere  matter  of  practice  for  each  court  to  regu 
late  for  itself.  It  is  perfectly  respectful  for  counsel  to  ask 
leave  to  have  a  jury  polled  and  it  is  no  disrespect  in  the 
court  to  refuse."  Though  the  proceeding  in  civil  cases  may 
be  allowed  in  the  discretion  of  the  court  before  the  verdict 
is  recorded,  it  is  never  allowed  afterwards.  Blackley  vs. 
Sheldon,  1  Johns.  33;  Walters  vs.  JunJdns,  16  Searg.  and 
Eawle,  414;  and  Graham  on  New  Trials,  Waterman's  edi 
tion,  1406.  With  the  assent  of  the  jury  to  the  verdict  as 
recorded,  their  functions  with  respect  to  the  case  cease, 
and  the  trial  is  closed.  In  the  present  case  the  record  was 
made  before  the  verdict  was  announced.  This  was  irregu- 


TROVER  AND   CONVERSION.  733 

lar;  the  verdict  should  in  all  cases  be  either  declared  by 
the  foreman  of  the  jury,  or  if  sealed  read  by  the  clerk,  so 
that  the  parties  may  be  distinctly  informed  Of  its  purport. 
No  objection,  however,  was  taken  to  the  course  pursued. 
The  appellant  would  seem  to  have  acted  upon  the  supposi 
tion  that  either  party  had  the  right  to  claim  a  poll  at  any 
time  before  the  jury  was  discharged.  In  this  respect,  as 
we  have  shown,  he  was  mistaken.  See  Martin  vs.  Maverick, 
1  McCord,  27;  Eopps  vs.  Barker,  4  Pick.  238;  also,  Felloivs' 
case,  5  Greenl.  333;  Commonwealth  vs.  Eoby,  12  Pick.  513; 
and  State  vs.  Allen,  1  McCord,  525.  There  is  nothing  in  the 
objection  that  the  assent  to  the  verdict  was  expressed  by 
the  foreman  and  not  by  the  jurors  themselves.  The  jurors, 
acting  as  a  body,  speak  through  their  foreman.  They  de 
clare  by  his  voice  their  verdict,  and  their  assent  to  the 
same  as  recorded.  His  assent  is  conclusive  upon  all,  unless 
a  disagreement  to  the  record  be  expressed  at  the  time.  20 
Cal.  70-72. 


CHAPTER,    XC. 

TROVER  AND  CONVEESION. 

SECTION  1.  Trover  is  a  remedy  to  recover  the  value  of 
personal  chattels  wrongfully  converted  by  another  to  his 
own  use.  2  Cal.  572. 

SEC.  2.  The  refusal  to  deliver  goods  on  demand  will  not 
in  all  cases  constitute  a  conversion,  unless  the  party  re 
fusing  have  it  in  his  power  to  deliver  up  the  goods  detained. 
2  Cal.  572. 

SEC.  3.  A  bailee  is  not  liable  in  trover  where  the  goods 
have  been  lost  or  stolen,  for  there  is  no  actual  conversion. 
Trover  is  a  remedy  to  recover  the  value  of  personal  chat 
tels,  wrongfully  converted  by  another  to  his  own  use.  5 
Cal.  572. 

•  SEC.  4.  Where  one  is  intrusted  by  another  with  goods 
with  power  to  sell  the  same  as  the  agent  or  clerk  of  the 
owner,  a  mere  intention  on  his  part  to  appropriate  the  pro 
ceeds  to  his  own  use,  does  not  amount  to  a  conversion  of 
the  goods;  but  while  his  agency  continues  his  sales  in  pur- 


734  JUSTICES'  TREATISE. 

suance  of  his  authority  are  valid  and  bind  the  owner.  If 
one  is  intrusted  with  goods  by  the  owner  with  power  to  sell 
the  same  at  retail  for  the  owner  as  his  agent  or  clerk,  and 
if  he  then  sells  the  goods  in  payment  of  his  private  debt  to 
one  who  has  full  knowledge  of  the  owner's  title  and  the 
agent's  relation  to  the  goods,  the  purchase  made  with  this 
knowledge  amounts  to  a  conversion  of  the  goods  by  the  pur 
chaser.  25  Gal.  556. 

SEC.  5.  The  action  of  trover  might  be  brought  when  the 
plaintiff's  goods  had  been .  converted,  and  conversion  is 
always  implied  where  one  had  secured  goods  in  any  man 
ner  and  without*  right  to  detain  them,  refused  to  deliver 
them  upon  request.  2  Col.  571;  4  Cal.  184;  8  Col.  514;  10 
Cal  392. 


CHAPTER   XCI. 

TRUSTS. 

SECTION  1.  The  radical  idea  of  a  trust  is  confidence. 
Sutlers  Co.  Litt.  249,  lib.  3.  A  trust,  then,  in  its  simplest 
elements  is  a  confidence  reposed  in  one  person  who  is  term 
ed  the  trustee,  for  the  benefit  of  another  who  is  termed  ces- 
tui  qui  trust,  and  it  is  a  confidence  respecting  property, 
which  is  thus  held  by  the  foimer  for  the  benefit  of  the  lat 
ter.  Every  grant  or  assignment  of  any  existing  trust  in 
land,  goods  or  things,  in  action,  unless  the  same  shall  be  in 
writing,  subscribed  by  the  person  making  the  same  or  by 
his  agent  lawfully  authorized,  shall  be  void.  Gen.  Latvs, 
3165. 

SEC.  2.  Tf  property,  in  its  original  state  and  form,  is 
covered  with  a  trust  in  favor  of  the  principal,  no  change  of 
that  state  and  form  can  divest  it  of  such  trust  or  give  the 
agent  or  trustee  converting  it  or  those  who  represent  him 
in  right  (not  being  lonajide  purchasers  for  a  valuable  con 
sideration  without  notice),  any  more  valid  claim  in  respect 
to  it  than  they  respectively  had  before  such  a  change.  An 
abuse  of  a  trust  can  confer  no  rights  on  the  party  abusing 
it  or  on  those  who  claim  in  privity  with  him.  This  prin 
ciple  is  fully  recognized  at  la\v  in  all  cases  where  it  is  sus- 


UNDERTAKING^  ON  BONDS.  735 

ceptible  of  being  brought  out  as  a  ground  of  action,  or  of 
defense,  in  a  suit  at  law.  It  matters  not  in  the  slightest 
degree  into  whatever  other  form,  different  from  the  original, 
the  change  may  have  been  made,  whether  it  be  that  of 
promissory  notes  or  of  goods  or  of  stock,  for  the  product 
of  a  substitute  for  the  original  thing  still  follows  the  nature 
of  the  thing  itself  so  long  as  it  can  be  ascertained  to  be 
such.  The  right  ceases  only  when  the  means  of  ascertain 
ment  fail,  which,  of  course,  is  the  case  when  the  subject- 
matter  is  turned  into  money  and  mixed  and  confounded  in 
a  general  mass  of  property  of  the  same  description.  13 
Cal.  140,  141. 

SEC.  3.  One  who  is  a  trustee  or  who  stands  in  a  situa 
tion  of  trust  and  confidence,  cannot  purchase  or  deal  with 
the  subject  of  the  trust,  neither  can  he  purchase  debts  due 
to  be  paid  out  of  the  trust  estate  nor  place  himself  in  an 
attitude  antagonistic  to  the  trust.  6  Cal.  245. 


CHAPTER   XCII. 
UNDERTAKING  ON  BONDS. 


GENERALLY 1-2 

CONSIDERATION  . .  3-4 


SECS. 

ALTERATIONS  AND  ERASURES.  . .         10 
ADMINISTRATOR'S  BOND 11 


WHAT  is  JOINT  AND  SEVERAL.  . .     '5-6  j  INJUNCTION  BONDS 12-13 

LIABILITY  OF  SURETIES 7-9  | 

Generally. 

SECTION  1.  Taking  all  of  our  statutes  together,  the 
obvious  design  was  to  put  an  undertaking  on  the  same  foot 
ing  as  a  bond.  13  Cal.  608. 

SEC.  2.  If  a  party  choose  to  execute  a  bond  rather  than 
pay  money  over  to  an  officer  which  he  could  otherwise  be 
compelled  to  do,  it  is  a  voluntary  act  upon  his  part  and  the 
bond  is  good  as  a  common  law  bond.  He  is  to  be  consid 
ered  as  a  party  who,  for  a  personal  accommodation,  has 
assumed  a  legal  responsibility,  and  after  receiving  its  bene 
fits  on  his  part  should  be  estopped  from  denying  its  legal 
ity.  7  Cal.  553,  554. 


736  JUSTICES'  TREATISE. 

Consideration. 

SEC.  3.  A  bond  being  under  sale,  imports  a  considera 
tion,  if  there  be  nothing  in  its  terms  which  negatives  this 
conclusion.  17  Gal.  622. 

SEC.  4.  The  mere  fact  of  a  receiver  holding  moneys  in 
trust  for  parties,  paying  a  portion  as  an  advance  to  a  party 
whom  he  believes  or  supposes  will  be  entitled  to  it,  is  not 
such  an  illegal  consideration  as  to  vitiate  a  bond  for  its  re 
payment.  12  Gal.  289. 

"What  is  Joint  and  Several. 

SEC.  5.  A  bond  running  thus:  "For  which  sums  re 
spectively,  unto  the  said  state  of  California  in  the  manner 
and  in  the  proportions  hereinbefore  set  forth,  we  bind  our 
selves,  our  and  each  of  our  heirs,  executors  and  administra 
tors,  jointly  and  severally,  firmly  by  these  presents,"  is  a 
joint  and  several  bond.  25  Col.  521. 

SEC.  6.  The  absence  of  the  signature  of  the  principal 
obligor  to  an  official  bond  is  not  a  defect  which  may  be 
cured  by  its  suggestion  in  a  complaint  under  the  eleventh 

section  of  the  act  concerning  official  bonds.     21  Col.  585. 

» 

Liabilities  of  Sureties. 

SEC.  7.  The  sureties  on  an  undertaking  cannot  be  held 
to  do  more  than  their  principal  was  required  to  do.  7  Gal. 
572. 

SEC.  8.  The  defendant  Dunlap  was  elected  recorder  of 
the  city  of  Sacramento  for  one  year  from  April  10th,  1857, 
and  by  an  ordinance  of  the  city  was  required  before  enter 
ing  upon  the  discharge  of  his  official  duties  to  give  a  bond 
with  two  or  more  sureties  for  their  faithful  performance. 
The  instrument  upon  which  this  suit  was  brought  was  filed 
and  approved  as  such  bond.  It  purports  to  be  the  bond  of 
Dunlap  as  principal,  and  of  Gass  and  Tucker  as  sureties, 
but  is  only  signed  by  the  sureties.  It  bears  neither  the  sig 
nature  nor  seal  of  Dunlap,  and  the  question  for  determina 
tion  is  whether  the  intended  principal  or  the  sureties  are 
bound  by  it.  We  are  clearly  of  the  opinion  that  they  are 
not.  As  Dunlap  has  never  put  his  signature  to  it  the  in- 


UNDEETAKING  ON  BONDS.  737 

strument  is  not  his  deed.  If  liable  for  the  fees  alleged  to 
have  been  collected  and  to  belong  to  the  plaintiffs,  it  must 
be  on  grounds  independent  of  the  supposed  bond,  and  as 
any  one  is  liable  for  moneys  received  which  are  the  prop 
erty  of  others.  The  liability  of  the  sureties  is  conditional 
to  that  of  the  principal.  They  are  bound  if  he  is  bound 
and  not  otherwise.  The  very  nature  of  the  contract  implies 
this.-  The  fact  that  their  signatures  were  placed  to  the  in 
strument  can  make  no  difference  in  its  effect.  It  purports 
on  its  face  to  be  the  bond  of  the  three.  Some  one  must 
have  written  his  signature  first,  but  it  is  to  be  presumed  upon 
the  understanding  that  the  others  named  as  obligors  would 
add  theirs.  Not  having  done  so  it  was  incomplete  and  with 
out  binding  obligation  upon  either.  [Bean  vs.  Parker  et.  al. 
17  Mass.;  591;  Wood  vs.  Wasliburn,  2  Pick.  24;  Sharp  vs. 
United  States,  4  Watts,  21:  Fletcher  vs.  Austin,  11  Vert.  447; 
Johnson  vs.  Erskine,  9  Texas,  1.]  14  Cal.  422. 

SEC.  9.  A  bond  which  in  form  is  the  joint  obligation  of 
a  principal  and  his  sureties  and  not  joint  and  several,  and 
signed  by  the  sureties  but  not  by  the  principal,  is  invalid 
and  not  binding  on  the  sureties.  21  Cal.  585. 

Alterations  and  Erasures. 

SEC.  10.  No  alteration  or  erasure  will  defeat  the  recov 
ery  upon  a  bond  unless  it  materially  affects  the  rights  or  con 
dition  of  the  obligor,  or  is  the  result  of  a  fraudulent  intent 
to  effect  the  same  object.  Thus,  a  bond  was.  made  to  the 
sheriff  instead  of  the  party  to  be  protected  by  it  by  mistake; 
after  the  mistake  was  discovered  the  name  of  the  sheriff  was 
erased  and  that  of  the  party  inserted:  Held,  that  this  did 
not  invalidate  the  bond.  2  Cal.  523. 

Administrator's  Bond. 

SEC.  11.  An  action  against  an  administrator  on  his  bond 
for  the  faithful  execution  of  his  duties  as  an  administrator, 
is  an  action  against  him  personally,  and  may  be  within  the 
jurisdiction  of  a  justice's  court.  1  E.  D.  Smith  (N.  Y.)  404. 

Injunction  Bonds. 

SEC.  12.     In  an  action  upon  an  injunction  bond  to  re- 
93 


738  JUSTICES'  TREATISE. 

cover  damages  for  the  wrongful  issuing  of  the  writ,  the 
amount  paid  to  counsel  as  a  fee  to  procure  the  dissolution 
of  the  injunction  may  be  allowed  as  part  of  the  damages; 
for  the  necessity  of  paying  such  counsel  fees  is  an  actual 
damage  that  the  defendant  has  sustained  in  defending  him 
self  and  procuring  a  dissolution  of  the  injunction,  and  the 
condition  of  the  bond  is  imperative  that  the  ' '  obligators  shall 
pay  to  the  parties  enjoined  such  damages  as  they  may -sus 
tain  by  reason  of  the  injunction.  The  principle  is  not  only 
just  in  equity,  but  sound  in  law,  that  all  the  damages  to 
which  a  party  may  be  put  by  the  wrongful  issuance  of  an 
injunction,  should  be  recoverable  in  an  action  upon  such 
bond,  and  reasonable  counsel  fees  should  be  included  in 
those  damages;  of  course,  leaving  the  amount  to  be  as 
sessed  by  the  jury  (overruling  1  Col.  412).  Generally,  the 
recovery  of  counsel  fees  is  not  allowed  as  a  part  of  the 
damages,  and  the  reason  given  for  it  is  because  the  loss  is 
consequential  and  not  the  actual  and  direct  injury  com 
plained  of;  but  where  the  injury  complained  of  is  the  im 
proper  commencement  and  prosecution  of  a  writ  or  of  any 
process  in  a  suit,  the  counsel  fees  is  a  loss  as  immediate 
and  direct  as  any  other,  and  should  be  allowed  (overruling 
1  Col.  412).  3  Col.  218,  219,  311. 

SEC.  13.  In  an  action  on  an  injunction  bond  the  fees  of 
an  attorney  employed  to  resist  the  injunction,  cannot  be 
recovered  as  damages  unless  they  have  been  paid.  The 
fact  that  the  plaintiff  is  subject  to  a  liability  to  his  attor 
ney,  without  showing  actual  payment  to  him,  is  insufficient. 
25  Cal.  169. 


CHAPTER   XCIII. 
USE   AND    OCCUPATION. 

SECTION  1.  Where  a  contract  has  been  made,  either  by 
express  or  implied  agreement,  for  the  use  of  a  house  or 
other  real  estate  where  there  was  no  amount  of  rent  fixed 
and  ascertained,  the  landlord  can  recover  a  reasonable  rent 


VALUE.  739 

in  an  action  of  assumpsit  for  use  and  occupation.  Bouv. 
Diet.  594. 

SEC.  2.  A  defendant  who  entered  under  a  bond  for  a 
deed  from  the  plaintiff,  cannot  set  off  his  improvements 
against  the  damages  for  use  and  occupation.  Kilburn  vs. 
Richie,  2  Cal.  145. 

SEC.  3.  The  right  to  recover  for  use  and  occupation  is 
founded  alone  on  contract.  0' Conner  vs.  Corbett,  3  Cal. 
370. 

SEC.  4.  No  action  for  use  and  occupation  will  lie  where 
possession  is  adverse  and  tortuous,  for  such  possession  ex 
cludes  the  idea  of  a  contract,  which  in  all  cases  of  this 
action  must  be  either  expressed  or  implied.  Sampson  vs. 
Skaeffer,  3  Cal.  196. 


CHAPTER    XCIV. 

VALUE. 

SECTION  1.  Value  in  common  law  has  two  different  mean 
ings;  it  sometimes  expresses  the  utility  of  an  object,  and 
sometimes  the  power  of  purchasing  other  goods  with  it. 
The  first  may  be  called  value  in  use,  the  latter  value  in  ex 
change.  Value  differs  from  price.  The  latter  is  applied 
to  live  cattle  and  animals;  in  a  declaration,  therefore,  for 
taking  cattle  they  ought  to  be  said  to  be  of  such  a  price; 
and  in  a  declaration  for  taking  dead  chattels  or  those  which 
never  had  life,  it  ought  to  lay  them  to  be  of  such  value. 
Bouv.  Diet.  598. 

SEC.  2.  The  universal  standard  of  value  is  the  amount 
of  money  which  can  be  realized  by  a  sale  of  the  property, 
and  this  will  apply  as  well  to  mining  claims  as  other  lands. 
State  of  California  vs.  Moore,  12  Cal.  56. 

SEC.  3.  Of  property  at  given  time,  in  the  absence  of  a 
contrary  showing,  the  value  of  the  property  at  said  time 
will  be  presumed  to  be  what  it  was  then  worth  in  the  mar 
ket.  The  rental  of  property  is  not  an  unerring  criterion  of 
its  value,  even  in  case  the  title  be  perfect,  and  it  is  less  cer 
tain  if  the  title  be  doubtful.  It  may  be  considered  for  the 


740  JUSTICES'  TREATISE. 

purpose  of  ascertaining  the  value  of  the  property  rented, 
but  should  not  outweigh  other  and  direct  evidence  to  the 
same  point.  Kisling  vs.  Shaw,  33  Cal.  425. 


CHAPTER    XCV. 

VABIANCE. 

SECTION  1.  The  court  shall,  in  every  stage  of  an  action, 
disregard  any  error  or  defect  in  the  pleadings  or  proceed 
ings  which  shall  not  affect  the  substantial  rights  of  the 
parties,  and  no  judgment  shall  be  reversed  or  affected  by 
reason  of  such  error  or  defect.  Pr.  Act,  71. 

SEC.  2.  A  variance  between  the  proof  on  the  trial  and 
the  allegations  in  a  pleading  shall  be  disregarded  as  imma 
terial,  unless  the  court  be  satisfied  that  the  adverse  party 
has  been  misled  to  his  prejudice  thereby.  Pr.  Act,  579. 

SEC.  3.  Allegata  and  Probata  must  Correspond. — The 
rule  that  the  allegata  and  probata  must  correspond  is  not 
abrogated  by  the  civil  practice  act.  The  plaintiff  must 
prove  his  contract  as  alleged  in  his  complaint  or  he  is  not 
entitled  to  recover.  28  Cal.  65;  25  Cal.  460;  32  Cal.  82. 

SEC.  4.  A  Pleader  averring  a  Written  Sale  may  prove  a 
Verbal  one. — The  party  making  an  allegation  in  a  pleading 
that  the  sale  of  a  mining  claim  under  which  he  claims  title 
was  in  writing  is  not  thereby  precluded  from  proving  that 
the  sale  was  a  verbal  one.  30  Cal.  360. 

SEC.  5.  On  Bill  of  Exchange. — If  the  answer  set  up  as  a 
defense  in  an  action  on  a  bill  of  exchange  is  a  total  failure 
of  consideration,  and  the  proof  shows  a  partial  failure  only, 
the  variance  is  not  an  available  one  under  our  practice.  31 
Cal.  383. 

SEC.  6.  A  judgment  will  not  be  reversed  on  the  ground 
of  variance  between  the  pleadings  and  proofs  when  the 
variance  does  not  mislead  the  appellant  to  his  prejudice. 
32  Cal.  11. 

SEC.  7.      The  seventy-first  section   of   the  practice  act, 


WARRANTY.  741 

requiring  immaterial  variance  between  the  pleadings  and 
proofs  to  be  disregarded,  is  a  most  beneficial  provision, 
and  should  be  literally  construed  and  carried  out.  32  Cal. 
11. 


CHAPTER    XCVI. 
WAKKANTY. 

SECS.  SECS. 

IN  GENERAL 1-5  |  RULES 6-7 

SECTION  1.  No  particular  form  of  words  is  necessary  to 
constitute  a  valid  warranty.  Any  positive  affirmation  re 
specting  the  thing  to  be  sold  which  the  purchaser  may  rely 
on  as  a  fact,  and  not  the  expression  of  an  opinion,  is  suffi 
cient.  The  following  is  a  warranty :  "This  horse  is  sound 
and  free  from  vice;  he  is  not  afflicted  with  lameness  or  any 
disease;  I  would  not  be  afraid  to  warrant  him."  Either  of 
these  affirmations  is  a  warranty.  13  Wend.  277;  19  Johns. 
290.  If,  however,  the  seller  says,  "This  horse  is  sound  as 
far  as  I  know,"  it  is  merely  an  expression  of  opinion,  and  he 
will  not  be  considered  as  warranting  the  horse.  If,  how 
ever,  it  can  be  shown  he  did  know  otherwise,  the  purchaser 
may  repudiate  the  sale  on  the  ground  of  fraud.  Story  on 
Con.  529.  The  affirmation  may  be  made  at  any  time  while 
the  treaty  for  the  sale  is  going  on,  although  the  sale  may 
not  take  place  for  some  days.  11  Wend.  584. 

SEC.  2.  A  general  warranty  relates  to  the  general  charac 
ter  of  the  thing  warranted;  as,  that  a  horse  is  free  from 
disease,  or  free  from  vice.  If,  however,  the  animal  has  a 
defect  which  is  pointed  out  to  the  purchaser,  the  warranty, 
though  in  writing,  will  not  extend  to  it.  Of  whatever 
defect  the  purchaser  is  informed  he  cannot  afterwards  com 
plain. 

SEC.  3.  Where  there  is  willful  misrepresentation,  con 
cealment  or  fraud,  by  the  vendor,  either  as  to  the  kind, 
soundness,  quality  or  other  particular,  of  the  article  sold, 
the  vendee  may  disregard  the  warranty  and  either  return 
the  article  and  recover  the  price  paid  or  bring  his  action 


742 


JUSTICES    TREATISE. 


for  his  damages  for  the  fraud;  and  he  may  show  the  fraud 
by  parol  evidence,  even  though  the  contract  be  in  writing, 
if  it  is  silent  as  to  the  fraudulent  inducements.  3  Barn.  & 
Cress.  623. 

SEC.  4.  A  mere  expression  of  an  opinion  in  relation  to  the 
quality  or  worth  of  an  article,  does  not  amount  to  a  war 
ranty.  Every  person  in  making  a  purchase  reposes  at  his 
peril  in  the  opinion  of  others,  where  he  has  an  equal  oppor 
tunity  with  them  of  judging;  and  where  he  sees  the  article 
he  must  judge  for  himself.  The  rule  of  caveat  emptor  applies 
in  such  case.  1  Sid.  146.  When  a  sale  is  made  by  a  sam 
ple,  in  order  to  raise  an  implied  warranty  that  the  bulk  of 
the  article  is  like  the  sample,  it  is  necessary  to  show  by  the 
circumstances  of  the  case  that  the  sale  was  intended  by  the 
parties  to  be  by  the  sample.  If  the  purchaser  might  have 
examined  the  bulk,  but  did  not,  simply  from  inconvenience 
in  so  doing,  the  rule  caveat  emptor  applies. 

SEC.  5.  Where  an  article  has  been  sold  with  warranty, 
whether  express  or  implied,  upon  its  breach  an  action  for 
damages  may  be  brought  without  offering  to  return  the 
article  or  giving  notice  of  the  defect;  and  the  purchaser 
may  recover  his  damages  although  he  sells  the  article.  12 
Wend.  566;  18,  425.  The  measure  of  damages  is  the  dif 
ference  between  the  actual  value  and  what  its  value  would 
have  been  had  it  been  conformable  to  the  warranty,  for  I 
may  have  purchased  a  cow  for  thirty  dollars  under  a  war 
ranty  that  she  is  gentle  and  harmless.  The  cow,  however, 
if  she  were  gentle  and  harmless  is  worth  fifty  dollars,  but 
by  reason  of  her  wild  and  vicious  disposition  she  is  worth 
only  thirty-five  dollars.  Here,  notwithstanding  the  cow  is 
worth  more  than  I  paid  for  her,  it  is  clear  that  I  have  lost 
fifteen  dollars,  because  she  did  not  conform  to  the  warranty; 
this,  therefore,  is  the  true  measure  of  damages.  11  John. 
50. 

SEC.  6.  Upon  the  subject  of  warranty  generally  the  fol 
lowing  rules  may  be  laid  down : 

1st.  In  order  to  recover  for  the  unsoundness  or  vice  of 
an  animal  there  must  be  shown  an  express  warranty  or 
a  fraudulent  concealment,  or  misrepresentation  of  the 
vendor. 


WATEK   RIGHTS. 


743 


2d.  If  there  be  a  defect  unknown  to  the  vendor  and 
there  be  no  warranty  he  is  not  liable. 

3d.  If  any  deceit  be  practiced,  either  by  concealment  or 
misrepresentation,  the  purchaser  may  bring  his  action  for 
damages  or  return  the  article.  But  if  he  elects  to  return  it 
he  must  do  so  in  a  reasonable  time. 

4th.  There  may  be  a  warranty  and  a  fraud  in  the  same 
sale.  In  such  case  the  purchaser  may  return  the  article  or 
bring  his  action  for  damages. 

5th.  There  may  be  a  warranty  and  an  authority  to  return 
the  article  if  it  be  not  as  warranted.  In  this  case  the  pur 
chaser  may  return  it  or  rely  upon  his  action  for  damages. 

6th.  Any  organic  defect  is  an  unsoundness.  2  Chit,  425; 
4  Camp.  281;  1  Stork  127. 

SEC.  7.  The  following  cases  adjudicated  in  this  state 
mav  be  referred  to  upon  the  law  of  warranty :  5  Gal.  262, 
471;  9  Cal  226;  14  Gal.  470;  24  Gal.  458. 


CHAPTER   XCVII. 
WATEB  EIGHTS. 


SECS. 

PKEFEBEED  USES  OF  WATEK  .  .  1-4 
NATUBE  OF  BIGHTS  TO  WATEB  . .  5-7 
EIGHTS  TO  WATEK  BY  BIPABIAN 

OWNEBSHIP 8-9 

WHAT  is  AN  APPBOPBIATION  OF 

WATER 10-11 

EIGHTS  OF  APPBOPRIATION  OF 

WATEB  . .  .  12-26 


SECS. 

EIGHT  TO  USE  OF  WATEB  IN 

PUBLIC  MINERAL  LANDS.  ..  27 

TEST  OF  PBIOBITT  IN  CLAIMS  TO 

WATER 28-29 

MINGLING  OF  WATERS  BY  DIF- 

FEBENT  APPROPKIATORS.  . .  .  30-31 

ACTIONS  FOR  WRONGFUL  DIVI 
SION  OF  WATER 32-33 

INJURIES  BY  WATEB 34^39 


Preferred  Uses  of  Water. 

SECTION  1.  The  uses  to  which  water  may  be  appropriated 
are :  To  supply  natural  wants,  such  as  to  quench  thirst,  to 
water  cattle,  for  household  or  culinary  purposes,  and  in 
some  countries  for  the  purposes  of  irrigation.  These  must 
be  first  supplied  before  the  water  can  be  applied  to  the  satis 
faction  of  artificial  wants,  such  as  mills,  manufactories  and 


744  JUSTICES'  TKEATISE. 

the  like,  which  are  not  indispensable  to  man's  existence.  8 
Cat.  141. 

SEC.  2.  The  use  of  water  for  domestic  purposes  and 
for  the  watering  of  stock  are  preferred  uses,  because  essen 
tial  to  sustain  life.  Other  uses  must  be  subordinate  to 
these.  In  such  cases  the  element  is  entirely  consumed. 
Next  to  these  may  properly  be  placed  the  use  of  water  for 
irrigation  in  dry  and  arid  countries.  In  such  cases  the  ele 
ment  is  also  entirely  consumed.  Under  a  proper  system 
of  irrigation  only  so  much  water  is  taken  from  the  stream  as 
may  be  needed,  and  the  whole  is  absorbed  or  evaporated. 
Entire  absorption  is  the  contemplated  result  of  irrigation. 
When  properly  used  as  a  motive  power  for  propelling 
machinery,  the  element  is  not  injured,  because  the  slight 
evaporation  occasioned  by  the  use  is  unavoidable,  and  is 
not  esteemed  by  the  law  a  substantial  injury.  Any  number 
of  riparian  proprietors  can  use  the  water  as  a  motive  power 
in  succession  without  substantial  injury  to  any  other,  for 
the  element  is  just  as  good  for  the  purposes  of  the  last  as 
for  those  of  the  first  proprietor.  8  Col.  333. 

SEC.  3.  Considering  the  different  uses  to  which  water  is 
applied  in  countries  governed  by  the  common  law,  it  is  not  so 
difficult  to  understand  the  principles  that  regulate  the  relative 
rights  of  the  different  riparian  proprietors.  As  to  the  pre 
ferred  uses,  each  proprietor  had  the  right  to  consume  what 
was  necessary,  and  after  doing  this  he  was  bound  to  let  the 
remaining  portion  flow  without  material  interruption  or  de 
terioration  in  the  natural  channel  of  the  stream  to  others 
below  him.  If  the  volume  of  water  was  not  sufficient  for  all 
then  those  highest  up  the  stream  were  supplied  in  prefer 
ence  to  those  below.  So  far  as  the  preferred  uses  were 
concerned  no  one  was  allowed  to  deteriorate  the  quality  of 
the  water;  and  for  the  purpose  of  a  motive  power  there 
was  no  use  of  the  element  that  could  impair  its  quality.  8 
Col.  333. 

SEC.  4.  In  a  mineral  region  we  have  a  novel  use  of  water 
that  cannot  be  classed  with  the  preferred  uses,  but  still  a  use 
that-  deteriorates  the  quality  of  the  element  itself  when 
wanted  a  second  time  for  the  same  purposes.  In  cases 
heretofore  known,  either  the  element  was  entirely  consumed 


WATER  BIGHTS.  745 

or  else  its  use  did  not  impair  its  quality  when  wanted  again 
for  the  same  purpose.  If  the  use  of  water  for  mining  pur 
poses  did  not  deteriorate  the  quality  of  the  element  itself, 
then  the  only  injury  that  could  be  complained  of  would  be 
the  diminution  in  the  quantity  and  the  interruption  in  the 
flow.  8  CaL  333. 

Nature  of  Rights  to  Water. 

SEC.  5.  The  right  of  property  in  water  is  usufructuary  and 
consists  not  so  much  in  the  fluid  itself  as  in  the  advantage 
of  its  use.  The  owner  of  land  through  which  a  stream 
flows,  merely  transmits  the  water  over  its  surface,  having 
the  right  to  its  reasonable  use  during  its  passage.  The 
right  is  not  in  the  corpus  of  the  water  and  only  continues 
with  its  possession.  A  party  cannot  reclaim  water  that  he 
has  lost.  3  Gal.  252;  8  CaL  141. 

SEC.  6.  It  is  true  that  the  mere  right  to  water  is  a  sort 
of  incorporeal  thing;  but  the  water  itself  is  substantial  and 
tangible,  and  as  the  right  gives  the  control  and  possession 
of  this  commodity,  and  entitles  the  party  to  damages  for  its 
diversion  by  another,  there  is  no  reason  why  this  right  may 
not  be  acquired  by  two  or  more  acting  together,  or  why, 
when  they  do  acquire  it,  they  do  not  hold  it  as  other 
property  and  may  not  sue  as  such  for  any  unlawful  inter 
ference  with  it.  12  CaL  47;  13  CaL  232. 

SEC.  7.  The  location  of  land  carries  with  it  all  the  inci 
dents  belonging  to  the  soil.  Those  who  construct  water 
ditches  will  do  so  with  reference  to  the  appropriations  of 
the  public  domain  that  have  been  previously  made  and  the 
rights  that  have  been  already  acquired,  with  a  full  knowl 
edge  of  their  own  rights  as  against  subsequent  locators.  8 
Col.  144. 

Rights  to  Water  by  Riparian  Ownership. 

SEC.  8.  By  the  common  law,  the  proprietor  of  lands 
upon  the  banks  of  a  water-course  owns  to  the  middle  of  the 
stream,  and  the  proprietor  of  the  lands  through  which  the 
stream  flows  is  held  to  be  the  owner  of  the  bed  of  the  stream 
and  entitled  to  the  use  of  the  water  which  flows  over  his 
land.  8  CaL  141. 

SEC.  9.  The  property  in  the  water,  by  reason  of  riparian 
94 


746 


JUSTICES    TREATISE. 


ownership,  is  in  the  nature  of  a  usufruct,  and  consists  in 
general  not  so  much  in  the  fluid  as  in  the  advantage  of  its 
impetus.  This,  however,  must  depend  in  a  great  measure 
upon  the  natural  as  well  as  the  artificial  wants  of  each  par 
ticular  country.  The  rule  is  well  settled  that  water  flows 
in  its  natural  channels  and  should  be  permitted  thus  to 
flow,  so  that  all  through  whose  lands  it  passes  may  enjoy 
the  privilege  of  using  it.  A  riparian  proprietor,  while  he 
has  the  undoubted  right  to  use  the  water  flowing  over  his 
land,  must  so  use  it  as  to  do  the  least  possible  harm  to 
other  riparian  proprietors.  8  Col.  141 ;  5  Cal.  145. 

What  is  an  Appropriation  of  "Water. 

SEC.  10.  In  appropriating  unclaimed  water  on  the  pub 
lic  lands,  only  such  acts  are  necessary  and  such  indications 
and  evidences  of  appropriation  required  as  the  nature  of 
the  case  and  the  face  of  the  country  will  admit  of,  and  are 
under  the  circumstances  and  at  the  time  practicable — sur 
veys,  notices,  stakes  and  blazing  of  trees,  followed  by  work 
and  actual  labor,  without  abandonment,  will  in  every  case, 
where  the  work  is  completed,  give  title  to  the  water  over 
subsequent  claimants.  The  title  to  the  water  conveyed 
through  a  ditch  constructed  in  such  manner  will,  on  com 
pletion  of  the  work,  date  back  from  the  beginning  of  the 
work  as  against  subsequent  appropriators.  12  Cal.  28. 

SEC.  11,  In. determining  the  question  of  diligence  in  the 
construction  of  such  a  work,  the  jury  have  a  right  to  take 
into  consideration  the  circumstances  siirrounding  the  par 
ties  at  the  date  of  the  appropriation,  such  as  the  nature 
and  climate  of  the  country  traversed  by  such  ditch,  togeth 
er  with  the  difficulties  of  procuring  labor  and  materials.  12 
Cal.  28;  15  Cal.  271 ;  21  Cal.  381. 

Rights  of  Appropriation  of  Water. 

SEC.  12.  The  appropriation  of  the  water  of  a  stream  to 
apply  it  to  some  useful  purpose  secures  a  right  which  can 
not  be  infringed  by  a  subsequent  appropriation  by  others. 
21  Cal.  381. 

SEC.  13.  The  prior  right  to  the  use  of  the  natural  water 
of  a  stream  does  not  entitle  the  owner  of  such  a  right  to 


WATEK  RIGHTS.  747 

the  exclusive  use  of  the  channel .  So  long  as  his  right  is 
not  interfered  with  there  is  no  reason  why  the  bed  of  the 
stream  may  not  be  used  by  others  as  a  channel  for  conduct 
ing  water.  11  Gal.  151;  23  Col.  490;  7  Cal  325. 

SEC.  14.  Where  parties  have  appropriated  the  prior 
right  to  the  use  of  the  water  of  a  stream  .by  the  commence 
ment  and  partial  completion  of  a  ditch  and  flume,  they  have 
the  right  to  use  so  much  of  the  waters  of  the  stream  as  are 
necessary  to  preserve  their  flume  from  injury  while  in  the 
process  of  construction.  10  Cal.  233;  8  Cal.  143. 

SEC.  15.  Where  a  party  takes  up  a  mill  site  on  public 
agricultural  land,  erects  a  saw-mill,  dwelling,  etc.,  and  ap 
propriates  the  water  of  the  stream  for  the  use  of  the  mill, 
he  may  use  the  water  for  a  grist-mill  erected  at  the  same 
place  years  afterwards.  It  would  require  clear  proof  that 
the  purposes  of  the  water  for  the  saw-mill  had  been  fully 
answered,  to  hold  that  the  title  to  the  water  was  abandoned. 
13  Cal.  221. 

SEC.  16.  Action  for  Invasion  of  Water  Eight. — Until  a 
claimant  is  himself  in  a  position  to  use  the  water,  the  right 
to  the  water  does  not  exist  in  such  a  sense  as  to  enable 
him  to  maintain  an  action  against  another,  either  to  recover 
the  water  or  damages  for  its  diversion.  37  Cal.  28£. 

SEC.  17.  Distinct  Causes  of  Action. — An  entry  upon  an 
ouster  from  a  dam  site  and  dam  in  process  of  construc 
tion  and  canal  site  and  canal  in  process  of  construction, 
and  a  diversion  of  water  claimed  by  means  of  the  dam  and 
canal,  are  two  distinct  causes  of  action,  which  cannot  be 
united  in  the  same  statement  of  cause  of  action  in  a  com 
plaint,  but  should  be  separately  stated.  37  Cal.  282. 

SEC.  18.  Rights  of  Rival  Corporations — Power  of  District 
Court. — Where  one  of  two  rival  water  company  corpora 
tions  had  acquired,  by  purchase  and  consent  of  the  owner, 
certain  lands  and  waters  which  are  appropriated  to  the  law 
ful  purpose  of  its  incorporation ;  and  thereafter  the  other 
corporation,  without  showing  an  availing  effort  made  by  it 
in  good  faith  to  acquire  the  same  property  for  a  like  pur 
pose,  instituted  proceedings  under  said  statute  for  its  con 
demnation,  as  against  the  first  corporation  :  Held,  1st,  that 
said  first  corporation  might  properly  resort  to  the  equitable 


748  JUSTICES'  TREATISE- 

jurisdiction  of  the  district  court  to  annul  a  condemnation 
ordered  in  said  proceeding ;  2d,  that  in  such  case  a  judg 
ment  of  the  district  court  annulling  said  proceeding  was 
properly  rendered.  36  Cal.  639. 

SEC.  19.  When  a  plaintiff  claims  water  on  the  ground 
of  prior  appropriation,  it  is  error  in  the.  court  to  refuse  an 
injunction  to  this  effect :  ' '  The  plaintiff  is  not  entitled  to 
any  greater  quantity  of  the  water  of  Desert  Creek  than  he 
actually  appropriated  prior  to  defendants'  appropriation." 
366^639. 

SEC.  20.  Query. — What  would  have  been  the  rule  if 
plaintiff  had  claimed  by  reason  of  occupancy  of  the  land 
and  as  riparian  proprietor?  36  Cal.  639. 

SEC.  21.  Query. — Whether  defendant  could  derive  any 
right  by  conveyance  from  an  Indian?  36  Cal.  639. 

SEC.  22.  Plaintiff  takes  up  land  on  a  stream  from  which 
a  part  of  the  water  has  already  been  diverted  by  a  ditch 
and  dam.  Subsequently  defendant  takes  up  the  land  on 
which  the  dam  and  ditch  are  situated.  The  plaintiff  has 
no  right  to  remove  the  dam.  36  Cal.  639. 

SEC.  23.  The  right  to  the  enjoyment  and  repair  of  a 
dam  arid  to  convey  the  water  so  diverted  to  flow  through 
certain  land,  is  such  an  interest  in  laud  as  can  only  be 
conveyed  by  deed  in  writing.  3  Nev.  Rep.  507. 

SEC.  24.  Where  an  action  is  brought  to  recover  a  water 
right  and  mill  site  described  by  metes  and  bounds,  as 
land  boundaries  are  usually  described :  Held,  that  an  in 
struction  to  the  effect  "  that  the  plaintiff  in  order  to  re 
cover  must  prove  that  he  was  entitled  to  the  premises  and 
water,  and  that  defendants  damaged  him  by  the  diversion 
of  the  water,"  is  erroneous.  To  entitle  plaintiff  to  recover, 
it  was  only  necessary  to  prove  title  and  immediate  right  of 
possession  in  himself  and  the  occupancy  by  defendant  of 
the  premises  described  when  suit  was  brought.  2  Nev. 
Hep.  67. 

SEC.  25.  Where  the  right  of  the  use  of  running  water 
is  based  upon  appropriation  and  not  upon  ownership  in 
the  soil,  priority  of  appropriation  gives  the  superior  right. 
4  Nev.  Hep.  534. 

SEC.  26.     Conflicting  Water  Claims. — Where  Eose  in  1858 


WATEB  RIGHTS.  749 

designed  a  large  ditch  to  carry  a  certain  quantity  of  water 
from  Carson  Biver,  a  distance  of  over  four  miles,  to  Day 
ton,  and  constructed  a  sufficiently  large  head,  but  after 
proceeding  less  than  half  a  mile,  reduced  its  size  so  that  a 
small  portion  only  of  the  quantity  of  water  originally  in 
tended  passed  through  it,  and  it  was  not  enlarged  to  its 
originally  intended  dimensions  until  after  1862,  and  in 
1859  the  Ophir  Silver  Mining  Company  constructed  a 
ditch  tapping  the  river  below  the  head  of  the  Rose  ditch, 
and  on  the  enlargement  of  the  Rose  ditch  the  Ophir  ditch 
was  deprived  of  its  supply:  Held,  that  Rose  had  not  prose 
cuted  the  work  on  his  ditch  as  originally  intended  with 
reasonable  diligence,  and  that  he  therefore  was  only  entitled 
to  the  quantity  of  wTater  which  ran  through  his  ditch  in  1859 
when  the  Ophir  ditch  was  constructed.  4  Nev.  Hep.  534. 

Right  to  use  of  Water  Course  in  Public  Mineral  Lands. 

SEC.  27.  Miners  are  in  possession  of  the  mineral  lands 
•under  a  license  from  both  the  state  and  federal  govern 
ments.  This  being  conceded,  the  superior  proprietor  must 
have  had  some  leading  object  in  view  when  granting  this 
license,  and  that  object  must  have  been  the  working  of 
these  mineral  lands  to  the  best  advantage.  The  intention 
was  to  distribute  the  bounty  of  the  government  among  the 
greatest  number  of  persons,  so  as  most  rapidly  to  develop 
the  hidden  resources  of  this  region;  while  at  the  same 
time,  the  prior  substantial  rights  of  individuals  should  be 
preserved.  In  the  working  of  these  mines  water  is  an 
essential  element,  therefore  that  system  which  will  make 
the  most  of  its  use  without  violating  the  rights  of  indi 
viduals  will  be  most  in  harmony  with  the  end  contemplated 
by  the  superior  proprietor.  In  a  late  case  it  was  held  that 
the  ditch  proprietor  was  equally  entitled  to  the  exclusive 
use  of  the  water,  pure  and  undiminished,  as  well  against 
the  subsequent  locator  above  as  below  the  ditch,  and  that 
the  two  cases  were  not  distinguishable  in  any  essential 
particular.  In  that  case  a  petition  for  a  rehearing  was 
filed  and  has  not  yet  been  disposed  of.  The  question  is 
still  therefore  an  open  one.  But  there  is  a  distinction  in 
the  two  cases.  When  a  party  constructs  a  ditch  and  diverts 


750  JUSTICES'  TEEATISE. 

the  waters  of  a  stream  before  the  rights  of  others  have 
attached  below,  he  only  takes  it  from  one  unoccupied 
mining  locality  to  another.  In  such .  case  there  can,  as  a 
general  rule,  be  no  substantial  injury  done  to  the  mining  in 
terest  of  the  state  or  to  the  rights  of  individuals.  The  water 
is  taken  to  a  locality  where  it  is  used,  and  after  so  being 
used,  it  finds  its  way  to  other  mining  localities,  where  it  is 
again  used.  The  effect  of  the  diversion  is  not  to  diminish 
the  number  of  times  the  water  may  be  used.  In  the  major 
ity  of  cases  it  is  used  as  often,  and  upon  the  whole  as 
profitably,  as  if  it  had  never  been  diverted,  but  had  con 
tinued  to  flow  down  its  natural  channels.  The  general  use 
fulness  of  the  element  is  not  impaired  by  the  diversion.  It 
may  be  very  safely  assumed  that  as  much  good,  if  not  more, 
is  accomplished  by  the  diversion  as  could  have  been  attain 
ed  had  such  diversion  never  occurred.  In  fact,  it  must  be 
presumed  that  the  water  is  taken  to  richer  mining  localities, 
where  it  is  more  needed,  and,  therefore,  the  diversion  of 
the  stream  promotes  this  leading  interest  of  the  state.  The 
ditch  owner  is  entitled  to  have  the  water  flow,  without 
material  interruption,  in  its  natural  channel.  This  right 
would  seem  to  be  compatible  in  general  with  the  fair  use  of 
the  water  above.  He  is  entitled  to  the  water  so  undimin- 
ished  in  quantity  as  to  leave  sufficient  to  fill  his  ditch  as  it 
existed  at  the  time  the  locations  were  made  above.  This 
right  is  essential  to  the  protection  of  the  ditch  owner.  If 
the  rule  is  laid  down  that  the  subsequent  locators  above 
may  so  use  the  water  as  to  diminish  the  quantit}^,  it  would 
be  difficult  to  set  any  practical  limits  to  such  diminution, 
and  the  ditch  property  might  be  rendered  entirely  worth 
less.  As  the  water  cannot  be  absorbed  or  evaporated  but 
once,  the  ditch  owner  should  be  entitled  to  its  exclusive 
use  in  such  case.  And  as  to  the  deterioration  in  quality, 
the  injury  should  be  considered  as  an  injury  without  con 
sequent  damage.  8  Col.  333,  334,  336;  23  Col.  481;  25  Col. 
504. 

Test  to  Priority  in  Claims  to  "Water. 

SEC.  28.     Possession  or  actual  appropriation  is  the  test 
of  priority  in  all  claims  to  the  use  of  water,  where   such 


WATER  RIGHTS.  751 

claims   are   dependent   upon   the   ownership   of    the   land 
through  which  the  water  flows.     12  Cal.  28. 

SEC.  29.  Possession  or  actual  appropriation  must  be  the 
test  of  priority  in  all  claims  to  the  use  of  water,  whenever 
such  claims  are  not  dependent  upon  the  ownership  of  the 
land  through  which  the  water  flows.  Such  appropriation 
cannot  be  constructive,  because  there  would  be  no  rule  to 
limit  or  control  it,  resting,  as  it  must,  only  in  intention. 
The  design  of  parties,  years  before,  to  appropriate  a  certain 
creek  as  a  connecting  link  of  a  series  of  water  works,  can 
not  give  the  exclusive  rights  until  it  is  executed,  because  it 
is  not  the  intention  to  possess,  but  the  actual  possession, 
which  gives  the  right.  The  purchase  by  parties  of  a  cer 
tain  dam  is  an  actual  appropriation  of  the  waters  of  the 
creek  so  far,  but  no  further;  and  until  they  build  a  dam 
below,  in  order  to  make  a  further  appropriation,  any  one 
else  has  the  right  to  do  so.  If  they  have  commenced  first 
in  good  faith,  then  although  their  power  of  enjoyment  will 
not  commence  until  its  completion,  yet  the  right,  as  against 
others,  will  bear  relation  to  the  time  of  commencement.  6 
Cal.  108;  7  Cal.  263;  8  Cal.  338. 

Mingling  of  Waters  by  Different  Appropriators. 

Sr.c.  30.  Where  there  is  a  confusion  of  goods  willfully 
made  by  one  owner  without  the  consent  of  the  other  so  that 
it  becomes  impossible  to  distinguish  what  belongs  to  each, 
the  common  law  gives  the  entire  property  to  the  injured 
party.  But  this  rule  is  carried  no  further  than  necessity 
requires;  and  if  the  goods  can  be  easily  distinguished  and 
separated — as  articles  of  furniture,  for  instance — then  no 
change  of  property  takes  place.  So,  if  the  corn  or  flour 
mixed  together  were  of  equal  value,  then  the  injured  party 
takes  his  given  quantity  and  not  the  whole.  11  Cal.  151. 

SEC.  31.  So  where  water  from  an  artificial  ditch  is 
turned  into  a  natural  water  course  and  mingled  with  natural 
waters  of  the  stream,  for  the  purpose  of  conducting  it  to 
another  point  to  be  there  used,  it  does  not  necessarily 
follow  that  the  water  introduced  becomes  subject  to  the 
use  of  the  first  appropriator  of  the  natural  waters  of  the 
stream  because  its  identity  is  lost  by  being  mingled  with 


752  JUSTICES'  TREATISE. 

the  natural  water  flowing  in  the  creek.  The  rights  of  the 
parties  after  such  mingling  are  not  unlike  the  rights  of  the 
owners  of  goods  of  equal  value  after  their  mixture — both 
are  entitled  to  take  their  given  quantity.  11  Cal.  151. 

Actions  for  "Wrongful  Diversion  of  Water. 

SEC.  32.  The  diversion  of  a  water  course  is  a  private 
nuisance.  8  Cal.  397. 

SEC.  33.  A  person  appropriating  and  diverting  the  water 
of  a  stream  at  a  given  point  cannot  afterwards  change  the 
point  of  diversion  to  the  prejudice  of  a  subsequent  locator. 
15  Cal.  161,  does  not  hold  that  the  first  appropriator  has 
an  absolute  and  unqualified  right  to  change  the  point  of 
diversion,  and  the  doctrine  of  that  case  is  affirmed.  Where 
a  party  attempts  to  construct  a  dam  on  a  creek  for  the  pur 
pose  of  diverting  the  water  at  that  point,  and  such  diversion 
is  illegal  as  against  another  party  who  has  a  dam  lower 
down,  the  latter  may  oust  the  former  from  the  possession 
of  the  ground  at  that  point  and  prevent  the  construction  of 
the  dam.  19  Cal.  609;  8  Cal.  443;  25  Cal.  504. 

Injuries  by  Water. 

TSEC.  34.  A  party  is  responsible  for  injuries  done  the 
ditch  of  another  by  the  deposit  of  mud  and  sediment  in  it. 
11  Cal.  162. 

SEC.  35.  The  owner  of  a  dam  is  bound  to  see  to  his  own 
property,  and  to  so  govern  and  control  it  that  injury  may 
not  result  to  his  neighbors.  If,  in  consequence  of  gross 
neglect  on  the  part  of  plaintiff  the  injury  happened,  a  dif 
ferent  rule  might  be  applied,  but  a  mere  want  of  reasonable 
care  to  prevent  the  injury  does  not  impair  the  right  to 
recover.  If  a  man  carelessly  fires  a  gun  in  the  street  it 
would  not  be  admissible  for  him  when  sued  for  the  injury 
done  another  by  it  to  say  that,  by  reasonable  care,  the  other 
might  have  got  out  of  the  way.  10  Cal.  541;  12  Cal.  558; 
23  Cal.  225. 

SEC.  36.  The  fact  that  plaintiff  could  have  prevented 
damage  by  pulling  off  a  board  from  defendant's  flume  and 
permitting  the  water  to  discharge  above  plaintiff's  claim,  is 
no  defense,  because  they  were  not  obliged  to  avoid  the  in- 


WATER  EIGHTS.  753 

juries   complained   of  by  committing  a  trespass.     15  Cal. 
319. 

SEC.  37.  When,  by  means  of  an  artificial  ditch,  the 
waters  of  a  stream  are  conducted  from  the  bed  of  the 
stream  over  the  adjacent  country,  crossing  other  small 
natural  water-courses,  the  beds  of  which  are  dammed  up 
by  the  embankment  of  the  ditch,  and  by  the  fall  of  rain  the, 
waters  of  the  streams  become  so  swollen  as  to  render  it 
necessary  to  cut  the  embankment  of  the  ditch  to  preserve 
it  from  injury,  and  the  owners  of  the  ditch  cut  the  embank 
ment  at  a  point  where  there  is  no  natural  water-course,  so 
that  the  waters  are  turned  on  to  cultivated  land,  causing 
injury  thereto,  the  injury  thereby  sustained  is  not  the  act 
of  God,  but  results  from  negligence,  and  the  owners  of  the 
ditch  are  liable  therefor.  25  Cal.  398. 

SEC.  38.  A  may  not,  in  order  to  save  his  own  property, 
destroy  the  property  of  B,  however  urgent  the  necessity. 
25  Cal.  398. 

SEC.  39.  A  river  which  is  not  within  the  ebb  and  flow  of 
the  tides  may  be,  notwithstanding,  a  navigable  stream  in 
two  events;  first,  when  it  is  of  sufficient  depth  and  width  to 
float  vessels,  boats  or  other  water  craft,  used  in  the  trans 
portation  of  freight  or  passengers  or  both,  and  this  has 
been  extended  to  its  capacity  to  float  rafts  of  lumber.  To 
go  beyond  this  and  attribute  navigable  properties  to  a 
stream  which  can  only  float  a  log,  is  carrying  the  doctrine 
entirely  too  far,  and  is  turning  a  rule  which  was  intended 
to  protect  the  public  into  an  instrument  of  serious  detri 
ment  to  individuals  if  not  of  actual  private  oppression. 
The  important  uses  to  which  the  waters  of  unnavigable 
streams  are  constantly  applied  would  have  no  security  or 
certainty  under  such  a  stretch  of  construction.  Dams  for 
the  erection  of  mills,  manufactories,  canals  for  the  purpose 
of  irrigation,  supplying  mines  or  even  to  subserve  naviga 
tion  itself,  would  have  to  give  way  to  the  mere  claim  of  the 
right  to  float  a  saw-log;  and  if  a  log,  why  not  a  plank  or  a 
fishing-rod?  The  idea  of  navigation  certainly  never  con 
templated  such  a  definition  or  such  results.  The  other  in 
stance  in  which  a  stream  is  navigable  is  when  it  is  expressly 
declared  so  by  statute,  and  when  so  declared  navigable  to 
95 


754  JUSTICES'  TREATISE. 

a  certain  point  by  implication,  it  is  declared  non-navigable 
above  that  point.     6  Cal.  446. 


CHAPTER   XCVIII. 

WITNESSES. 

SECTION  1.  No  person  shall  be  disqualified  as  a  witness 
in  any  action  or  proceeding  on  account  of  his  opinions  on 
matters  of  religious  belief  or  by  reason  of  his  interest  in 
the  event  of  the  action  or  proceeding  or  a  party  thereto  or 
otherwise ;  but  the  party  or  parties  thereto  and  the  person 
in  whose  behalf  such  action  or  proceeding  may  be  brought 
or  defended,  shall,  except  as  hereinafter  excepted,  be  com 
petent  and  compelled  to  give  evidence,  either  viva  voce  or 
by  deposition,  or  upon  a  commission,  in  the  same  manner 
and  subject  to  the  same  rules  of  examination  as  any  other 
witness  on  behalf  of  himself  or  any  of  the  parties  to  the 
action  or  proceeding.  Pr.  Act,  392. 

SEC.  2.     The  following  persons  shall  not  be  witnesses  : 

1st.  Those  who  are  of  unsound  mind  at  the  time  of  their 
production  for  examination. 

2d.  Children  under  ten  years  of  age  who,  in  the  opinion 
of  the  court,  appear  incapable  of  receiving  just  impressions 
of  the  facts  respecting  which  they  are  examined  or  of  re 
lating  them  truly. 

2d.  Mongolians,  Chinese  or  Indians,  or  persons  having 
one-half  or  more  of  Indian  blood,  in  an  action  or  proceed 
ing  wherein  a  white  person  is  a  party. 

4th.  Persons  against  whom  judgment  has  been  rendered 
upon  a  conviction  for  a  felony,  unless  pardoned  by  the  gov 
ernor  or  such  judgment  has  been  reversed  on  appeal.  Pr. 
Act,  394. 

SEC.  3.  A  husband  may  be  a  witness  for  or  against  his 
wife,  and  a  wife  may  be  a  witness  for  or  against  her  hus 
band;  and  where  husband  and  wife  are  parties  to  an  action 
or  proceeding,  they  or  either  of  them  may  be  examined  as 
witnesses  in  their  own  behalf  or  in  behalf  of  each  other,  or 


WITNESSES.  755 

in  behalf  of  any  of  the  parties  thereto,  the  same  as  any 
other  witness;  but  this  section  shall  not  apply  to  cases  of 
divorce,  neither  shall  any  husband  or  wife  be  competent  or 
compellable  to  disclose  any  communication  ma*de  to  him  or 
her  by  the  other  during  marriage.  Pr.  Ad,  395. 

SEC.  4.  An  attorney  or  counselor  shall  not,  without  the 
consent  of  his  client,  be  examined  as  a  witness  as  to  any 
communication  made  by  the  client  to  him  or  his  advice 
given  thereon  in  the  course  of  professional  employment. 
Pr.  Act,  396. 

SEC.  5.  A  clergyman  or  priest  shall  not,  without  the 
consent  of  the  person  making  the  confession,  be  examined 
as  a  witness  to  any  confession  made  to  him  in  his  profes 
sional  character  in  the  course  of  discipline  enjoined  by  the 
church  to  which  he  belongs.  Pr.  Act,  397. 

SEC.  6.  A  licensed  physician  or  surgeon  shall  not,  with 
out  the  consent  of  his  patient,  be  examined  as  a  witness  as 
to  any  information  acquired  in  attending  the  patient  which 
was  necessary  to  enable  him  to  prescribe  or  act  for  the  pa 
tient  :  provided,  however,  in  any  suit  or  prosecution  against 
a  physician  or  surgeon  for  malpractice,  if  the  patient  or 
party  suing  or  prosecuting  shall  give  such  consent  and  any 
such  witness  shall  give  testimony,  then  such  physician  or 
surgeon  defendant  may  call  any  other  physicians  or  sur 
geons  as  witnesses  on  behalf  of  defendant  without  the  con 
sent  of  such  patient  or  party  suing  or  prosecuting.  Pr.  Act, 
398. 

SEC.  7.  A  public  officer  shall  not  be  examined  as  a  wit 
ness  as  to  communications  made  to  him  in  official  confi 
dence  when  the  public  interest  would  suffer  by  the  dis 
closure.  Pr.  Act,  399. 

SEC.  8.  The  judge  himself  or  any  juror  may  be  called  as 
a  witness  by  either  party;  but  in  such  case  it  shall  be  in 
the  discretion  of  the  court  or  judge  to  order  the  trial  to  be 
postponed  or  suspended  and  to  take  place  before  another 
judge  or  jury.  Pr.  Act,  400. 

SEC.  9.  When  a  witness  does  not  understand  and  speak 
the  English  language  an  interpreter  shall  be  sworn  to  in 
terpret  for  him.  Any  person  a  resident  of  the  proper 
county  may  be  summoned  by  any  court  or  judge  to  appear 


756  JUSTICES'  TBEATISE. 

before  such  court  or  judge  to  act  as  interpreter  in  any 
action  or  proceeding.  The  summons  shall  be  served  and 
returned  in  like  manner  as  a  subpena.  Any  person  so  sum 
moned  shall,  for  a  failure  to  attend  at  the  time  and  place 
named  in  the  summons,  be  deemed  guilty  of  a  contempt 
and  may  be  punished  accordingly.  Pr.  Act,  401. 

SEC.  10.  In  all  criminal  actions  when  the  husband  is  the 
party  accused,  the  wife  shall  be  a  competent  witness,  and 
when  the  wife  is  the  party  accused  the  husband  shall  be  a 
competent  witness;  but  neither  the  husband  nor  wife  shall 
be  compelled  or  allowed  to  testify  in  such  cases  unless  by 
consent  of  both  of  them :  provided,  that  in  all  cases  of  per 
sonal  violence  upon  either  by  the  other,  the  injured  party 
(husband  or  wife)  shall  be  allowed  to  testify  against  the 
other.  Act  approved  Jan.  31,  1866. 

SEC.  11.  Section  three  hundred  and  ninety-three  of  the 
practice  act  prohibiting  any  person  giving  testimony  when 
the  adverse  party  is  the  representative  of  a  deceased  per 
son,  was  repealed  April  2,  1870. 

SEC.  12.  In  divorce  cases  either  party  to  the  action  may 
be  a  witness  on  the  trial,  but  no  divorce  shall  be  granted 
on  their  testimony  unless  corroborated  by  other  evidence. 
Pub.  Laws,  1870,  291. 


CHAPTER    XCIX. 

FEES. 

Fees  of  Justices. 

SECTION  1.     Following  are  the  fees  of  justices  in  the  sev-  • 
eral  counties  of  this  state  except  the  county  of  Yuba:     For 
filing  each  paper,  twenty-five  cents;  issuing  any  writ  or  pro 
cess  by  which  suit  is  commenced,  fifty  cents;  for  entering 
every  cause  upon  his  docket,  fifty  cents;  for  issuing  subpena, 
twenty-five  cents;  for  administering  an  oath  or  affirmation, 
twenty-five  cents;  for  each  certificate,  twenty-five  cents;  for* 
issuing  writ  of  attachment  or  of  arrest,  or  for  the  delivery 
of  property,  fifty  cents;  for  entering  any  final  judgment,  for 


FEES.  757 

the  first  folio  one  dollar,  for  each  additional  folio  twenty 
cents;  for  taking  or  approving  any  bond  or  undertaking, 
directed  by  law  to  be  taken  or  approved  by  him,  fifty  cents; 
for  taking  justification  to  a  bond,  fifty  cents;  for  swearing  a 
jury,  fifty  cents;  for  taking  deposition,  per  folio,  twenty 
cents;  for  entering  a  satisfaction  of  a  judgment,  fifty  cents; 
for  copy  of  a  judgment,  order,  docket,  proceedings  or  paper 
in  his  office,  for  each  folio,  twenty  cents;  for  issuing  com 
mission  to  take  testimony,  fifty  cents;  for  issuing  superse- 
deas  to  an  execution,  fifty  cents;  for  making  up  and  trans 
mitting  transcript  and  papers  on  appeal,  one  dollar  and  fifty 
cents;  for  issuing  search-warrant,  fifty  cents;  for  issuing  an 
execution,  fifty  cents;  for  celebrating  marriage  and  return 
ing  certificate  thereof  to  the  recorder,  five  dollars;  for  all 
services  and  proceedings  before  a  justice  of  the  peace  in 
the  county  of  Los  Angeles,  in  a  criminal  action  or  proceed 
ing,  whether  on  examination  or  trial,  three  dollars,  to  be 
collected  from  the  defendant,  but  in  no  case  shall  the  same 
be  a  charge  against  the  county  if  not  so  collected;  for  tak 
ing  bail,  after  commitment,  in  criminal  cases,  one  dollar; 
for  entering  cause  without  process,  one  dollar ;  for  entering 
judgment  by  confession  and  only  on  affidavit,  as  required 
in  district  court,  three  dollars;  for  entering  every  motion, 
rule,  exception,  order  or  default,  twenty-five  cents ;  for  tran 
script  of  judgment,  per  folio,  twenty  cents:  provided,  that 
in  the  counties  of  Amador  and  Sierra,  justices  of  the  peace 
may  lawfully  charge,  demand  and  receive,  the  fees  allowed 
by  an  act  to  regulate  fees  of  office,  approved  April  10th, 
1855  :  provided,  further,  that  in  the  counties  of  Alameda, 
Santa  Clara,  Santa  Cruz,  Monterey,  Shasta  and  Sutter, 
each  justice  of  the  peace  shall  be  allowed,  in  a  civil  action 
before  him,  the  following  fees  and  no  others :  For  all  serv 
ices  required  to  be  performed  by  him  before  trial,  two  dol 
lars;  two  dollars  additional  for  each  writ  of  attachment  or 
replevin;  for  the  trial  and  all  proceedings  subsequent  there 
to,  including  all  affidavits,  swearing  witnesses  and  jury,  and 
the  entry  of  judgment  and  issue  of  execution  thereon,  three 
dollars;  twenty-five  cents  for  each  hour  actually  occupied 
by  the  trial  of  each  cause,  and  in  all  cases  where  judgment 
is  rendered  by  default  or  confession,  for  all  services,'  includ- 


758 


JUSTICES    TREATISE. 


ing  execution  and  satisfaction  of  judgment,  three  dollars. 
For  certificate  and  transmitting  transcript  and  papers  of  ap 
peal,  one  dollar;  for  copies  of  papers  or  docket,  per  folio, 
fifteen  cents;  for  issuing  a  search-warrant,  to  be  paid  by  the 
party  demanding  the  same,  fifty  cents ;  for  celebrating  a 
marriage  and  returning  a  certificate  thereof  to  the  county 
recorder,  three  dollars ;  for  taking  an  acknowledgment  of 
any  instrument,  for  the  first  name  fifty  cents,  for  each  ad 
ditional  name  twenty-five  cents;  for  taking  deposition,  per 
folio,  fifteen  cents;  for  administering  an  oath  and  certifying 
the  same,  twenty-five  cents;  for  issuing  a  commission'  to 
take  testimony,  fifty  cents;  for  all  services  and  proceedings 
before  a  justice  of  the  peace,  in  a  criminal  action  or  pro 
ceeding,  whether  on  examination  or  trial,  three  dollars;  for 
all  services  connected  with  the  posting  of  estrays,  including 
the  transcript  to  the  recorder,  two  dollars.  In  cases  before 
justices  of  the  peace,  when  the  venue  shall  be  changed,  the 
justice  before  whom  the  action  shall  be  brought,  for  al 
services  rendered,  including  the  making  up  and  transmis 
sion  of  the  transcript  and  papers,  'shall  receive  two  dollars ; 
and  the  justice  before  whom  the  trial  shall  take  place  shall 
receive  the  same  fees  as  if  the  action  had  been  commenced 
before  him.  All  fees  of  justices  of  the  peace,  including 
those  on  trial  and  those  on  appeal,  must  be  paid  before  the 
justice  shall  be  compelled  to  forward  any  papers  on  appeal. 
For  all  services  appertaining  to  the  coroner's  office  which 
the  coroner  is  unable  to  attend  to,  the  justice  of  the  peace 
shall  receive  the  same  fees  as  are  allowed  the  coroner  for 
similar  services :  provided,  that  in  the  county  of  Los  Angeles 
no  justice  of  the  peace  shall  be  entitled  to  receive,  in  full 
compensation  for  all  services  rendered  by  him  in  criminal 
cases,  a  sum  exceeding  three  hundred  dollars,  in  the  aggre 
gate,  per  annum. 

SEC.  2.  Each  justice  of  the  peace  in  Yuba  county  shall 
be  allowed  as  fees  in  a  civil  action  before  him,  for  all  ser 
vices  required  to  be  performed  by  him  before  trial,  two 
dollars;  and  for  the  trial  and  all  proceedings  subsequent 
thereto,  including  all  affidavits,  swearing  witnesses  and 
jury,  and  the  entry  of  judgment  and  issue  of  execution 
thereon*  five  dollars;  and  in  all  cases  where  judgment  is 


FEES.  759 

rendered  by  default  or  confession  for.  all  services,  including 
execution  and  satisfaction  of  judgment,  three  dollars;  for 
all  services  and  proceedings  in  a  criminal  action  or  pro 
ceeding,  whether  on  examination  or  trial,  three  dollars; 
for  taking  bail,  after  commitment  by  another  magistrate, 
fifty  cents;  for  certificate  and  transmitting  transcript  and 
papers  on  appeal,  one  dollar  and  fifty  cents;  for  copies  of 
papers  on  docket,  per  folio,  fifteen  cents;  for  issuing  a 
search  warrant,  to  be  paid  by  the  party  demanding  the 
same,  fifty  cents;  for  celebrating  a  marriage  and  returning 
a  certificate  thereof  to  the  county  recorder,  five  dollars; 
for  taking  an  acknowledgment  of  any  instrument,  for  the 
first  name,  fifty  cents ;  for  each  additional  name,  twenty-five 
cents;  for  taking  depositions,  per  folio,  fifty  cents;  for  ad 
ministering  an  oath  and  certifying  the  same,  twenty-five 
cents;  for  issuing  a  commission  to  take  testimony,  fifty 
cents ;  for  all  services  connected  with  the  posting  of  estrays, 
including  the  transcript  for  the  recorder,  two  dollars;  in 
cases  before  justices  of  the  peace,  where  the  venue  shall 
be  changed,  the  justice  before  whom  the  action  shall  be 
brought,  for  all  services  rendered,  including  the  making 
up  and  transmission  of  the  transcript  and  papers,  shall  re 
ceive  two  dollars;  and  the  justice  before  whom  the  trial 
shall  take  place  shall  receive  the  same  fees  as  if  the  action 
had  been  commenced  before  him. 

Fees  of  Constables. 

SEC.  3.  Constables  shall  receive  as  fees  for  serving 
summons  in  civil  cases,  for  each  defendant,  fifty  cents. 
For  summoning  any  jury  before  a  justice  of  the  peace,  in 
cluding  mileage,  two  dollars :  provided,  that  in  the  counties 
of  Amador  and  Butte  he  shall  have  two  dollars  and  mile 
age.  For  making  sales  of  estrays,  the  same  fees  as  for 
sales  on  execution;  for  all  other  services,  the  same  fees  as 
are  allowed  to  sheriffs  for  similar  services.  For  services 
performed  by  the  several  officers  under  the  act  concerning 
water  craft  found  adrift  and  lost  money  and  property, 
passed  April  5th,  1850,  they  shall  receive  the  fees  as  are 
prescribed  in  said  act:  provided,  that  in  the  county  of 
Los  Angeles  the  constables  therein  shall  receive*  in  fu.1 


760  JUSTICES'  TREATISE. 

compensation  for  all  services  rendered  by  them  in  crim 
inal  cases,  a  sum  not  to  exceed  three  hundred  dollars  each 
per  annum,  in  the  aggregate  :  and  provided,  that  in  the 
county  of  San  Joaquin,  constables  shall  receive  the  same 
fees  as  the  sheriff  of  said  county  is  allowed  for  like  services. 
SEC.  4.  In  the  counties  of  Alpine,  Alameda,  Amador, 
Butte,  Colusa,  Del  Norte,  Fresno,  Inyo,  Klamath,  Kern, 
Lake,  Lassen,  Mariposa,  Mono,  Merced,  Napa,  Nevada, 
Placer,  Plumas,  San  Diego,  San  Joaquin,  San  Luis  Obispo, 
Shasta,  Santa  Barbara,  Sierra,  Solano,  Stanislaus,  Sutter, 
Tehama,  Trinity,  Tuolumne,  Yolo,  Sacramento  and  San 
Mateo,  the  constable  shall  receive  the  fees  hereinafter  speci 
fied  :  for  serving  an  attachment  on  property,  or  levying  an 
execution,  or  executing  an  order  of  arrest,  or  order  for  the 
delivery  of  personal  property,  two  dollars;  for  serving  an 
attachment  upon  any  ship,  boat  or  vessel,  in  proceedings  to 
enforce  any  lien  thereon  created  by  law,  three  dollars ;  for 
his  trouble  and  expense  in  taking  and  keeping  possession 
of  and  preserving  property  under  attachment  or  execution 
or  other  process,  such  sum  as  the  court  shall  order,  pro 
vided  that  no  more  than  three  dollars  per  diem  shall  be 
allowed  to  a  keeper ;  for  taking  bond  or  undertaking  in 
any  case  in  which  he  is  authorized  to  take  the  same,  one 
dollar;  for  copy  of  any  writ,  process  or  other  paper,  when 
demanded  or  required  by  law,  for  each  folio,  twenty  cents  ; 
for  serving  every  notice,  rule  or  order,  one  dollar ;  for 
advertising  property  for  sale  on  execution  or  under  any 
judgment  or  order  of  sale,  exclusive  of  the  cost  of  publi 
cation,  each  notice,  one  dollar;  for  holding  each  inquest  or 
trial  of  right  of  property,  to  include  all  service  in  the 
matter,  except  mileage,  three  dollars ;  for  serving  a  sub- 
pena,  for  each  witness  summoned,  fifty  cents ;  for  commis 
sions  for  receiving  and  paying  over  money  on  execution-  or 
other  process,  when  lands  or  personal  property  have  been 
levied  on  and  sold,  three  per  cent.  ;  for  commissions  for 
receiving  and  paying  over  money  on  execution  without  levy 
or  where  the  lands  or  goods  levied  on  shall  not  be  sold,  one 
and  one-half  per  cent. ;  the  fees  herein  allowed  for  the  levy 
of  an  execution,  costs  for  advertising  and  percentage  for 
making*or  collecting  the  money  on  execution,  shall  be  col- 


FEES.  761 

iected  from  the  judgment-debtor,  by  virtue  of  such  execu 
tion,  in  the  same  manner  as  the  sum  herein  directed  to  be 
made;  for  drawing  and  executing  a  deed,  to  include  the 
acknowledgment,  exclusive  of  stamps,  to  be  paid  by  the 
grantee  before  delivery,  three  dollars  and  fifty  cents;  for 
executing  a  certificate  of  sale,  exclusive  of  the  filing  and 
recording  of  the  same,  one  dollar;  for  making  every  arrest 
in  a  criminal  proceeding,  two  dollars ;  for  summoning  a 
trial  jury  of  twelve  persons  or  less,  four  dollars;  for  sum 
moning  each  additional  juror,  twenty-five  cents;  for  every 
mile  necessarily  traveled,  in  going  only,  in  executing  any 
warrant  of  arrest,  subpena  or  venire,  bringing  up  a  prisoner 
on  habeas  corpus,  taking  prisoners  before  a  magistrate  or  to 
prison,  or  for  mileage  in  any  criminal  case  or  proceeding : 
provided,  that  in  serving  a  subpena  or  venire,  wrhen  two  or 
more  jurors  or  witnesses  live  in  the  same  direction,  but  one 
mileage  shall  be  charged,  thirty  cents ;  provided,  further,  that 
in  the  counties  of  Amador  and  Sacramento,  for  every  mile 
necessarily  travelled,  in  any  criminal  case,  twenty  cents; 
for  conveying  a  prisoner,  when  under  arrest,  the  necessary 
expenses  incurred  in  the  transportation. 

SEC.  5.  In  the  counties  of  Sonoma,  Mendocino  and 
Marin,  the  constable  shall  be  entitled  to  receive  the  fees 
hereinafter  specified :  For  serving  a  summons  on  each  de 
fendant,  fifty  cents;  for  serving  an  attachment  on  property, 
or  levying  an  execution,  or  executing  an  order  of  arrest  or 
order  for  the  delivery  of  personal  property,  one  dollar  and 
twenty-five  cents;  for  serving  an  attachment \ipon  any  ship, 
boat  or  vessel,  in  proceedings  to  enforce  any  lien  thereon 
created  by  law,  one  dollar  and  twenty-five  cents;  for  his 
trouble  and  expense  in  taking  and  keeping  possession  of 
an4  preserving]  property  under  attachment  or  execution  or 
other  process,  as  the  court  shall  order:  provided,  that  no 
more  than  three  dollars  per  diem  shall  be  allowed  to  a 
keeper,  three  dollars;  for  taking  bond  or  undertaking  in  any 
case  in  which  he  is  authorized  to  take  the  same,  forty  cents ; 
for  copy  of  any  writ,  process  or  other  paper,  when  demanded 
or  required  by  law,  for  each  folio,  fifteen  cents;  for  serving 
every  notice,  rule  or  order,  forty  cents;  for  advertising 
property  for  sale  on  execution  or  under  any  judgment  or 
96 


762  JUSTICES'  TEEATISE. 

order  of  sale,  exclusive  of  the  cost  of  publication,  each  no 
tice,  one  dollar;  for  holding  each  inquest,  or  trial  of  right 
of  property,  to  include  all  services  in  the  matter  except 
mileage,  three  dollars;  for  serving  a  subpena  for  each  wit 
ness  summoned,  forty  cents;  for  commissions  for  receiving 
and  paying  over  money  on  execution  or  other  process  when 
lands  or  personal  property  has  been  levied  on  and  sold,  on 
the  first  one  thousand  dollars,  two  per  cent. ;  for  commis 
sions  for  receiving  and  paying  over  money  on  execution 
without  levy,  or  when  the  lands  or  goods  levied  on  shall 
not  be  sold,  on  the  first  one  thousand  dollars,  one  and  one- 
half  per  cent.  The  fees  herein  allowed  for  the  levy  of  an 
execution,  costs  for  advertising  and  per  centage  for  making 
or  collecting  the  money  on  execution  shall  be  collected 
from  the  judgment-debtor,  by  virtue  of  such  execution  in 
the  same  manner  as  the  sum  therein  directed  to  be  made. 
For  drawing  and  executing  a  deed,  to  include  the  acknowl 
edgment,  exclusive  of  stamps,  to  be  paid  by  the  grantee 
before  delivery,  three  dollars  and  fifty  cents;  for  executing 
a  certificate  of  sale  exclusive  of  the  filing  and  recording  of 
the  same,  one  dollar;  for  attending  when  required  on  any 
court,  in  person  or  by  deputy,  for  each  day,  to  be  paid  out 
of  the  county  treasury,  three  dollars ;  for  making  every  arrest 
in  a  criminal  proceeding,  one  dollar  and  fifty  cents;  for 
summoning  a  trial  jury  of  twelve  persons  or  less,  four  dol 
lars;  for  summoning  each  additional  juror,  twenty  cents;  for 
every  mile  necessarily  traveled  in  executing  any  warrant  of 
arrest,  subpenti  or  venire,  bringing  up  a  prisoner  on  habeas 
corpus,  taking  prisoners  before  a  magistrate  or  to  prison,  or 
for  mileage  in  any  criminal  case  or  proceeding :  provided, 
that  in  serving  a  subpena  or  venire,  when  two  or  more 
jurors  or  witnesses  live  in  the  same  direction,  but  one  mile 
age  shall  be  charged,  forty  cents,  in  going  only;  for  convey- 
'  ing  a  prisoner  when  under  arrest,  the  necessary  expenses  in 
curred  in  the  transportation. 

SEC.  6.  In  the  counties  of  Contra  Costa,  Humboldt, 
Monterey,  Santa  Clara,  Los  Angeles,  Santa  Cruz  and  Tu- 
lare,  the  constable  shall  be  entitled  to  receive  the  fees 
hereinafter  specified :  For  serving  on  each  defendant  one 
dollar;  for  taking  bond  or  undertaking  in  any  case  in  which 


FEES.  763 

he  is  authorized  to  take  the  same,  fifty  cents;  for  copy  of 
any  writ,  process  or  other  paper,  when  demanded  or  re 
quired  by  law,  for  each  folio,  fifteen  cents;  for  serving 
every  notice,  rule  or  order,  fifty  cents ;  for  serving  a  sub- 
pena,  for  each  witness  summoned,  twenty-five  cents;  for 
serving  an  attachment  on  property,  or  levying  an  execution, 
or  executing  an  order  of  arrest  or  order  for  the  delivery 
of  personal  property,  one  dollar  and  fifty  cents;  but  no 
travelling  fees  shall  be  allowed  on  such  attachment,  order 
of  arrest  or  order  for  the  delivery  of  personal  property, 
when  the  same  accompanies  the  summons  in  the  suit,  and 
may  be  executed  at  the  time  of  the  service  of  the  summons, 
unless  for  the  distance  actually  travelled  beyond  that  re 
quired  to  serve  the  summons ;  he  shall  be  allowed  such  fur 
ther  compensation  for  his  trouble  and  expense  in  taking 
and  keeping  possession  of  and  preserving  property  under 
attachment  or  execution  or  other  process  as  the  court  shall 
order :  provided,  no  more  than  three  dollars  per  diem  shall 
be  allowed  to  a  keeper.  For  serving  an  attachment  upon 
any  ship,  boat  or  vessel,  in  proceedings  to  enforce  any  lien 
thereon  created  by  law,  one  dollar  and  fifty  cents;  also, 
three  dollars  per  day  for  each  day  while  such  ship,  boat  or 
vessel,  is  in  the  actual  custody  of  the  constable,  and  such 
further  necessary  expenses  incurred  in  serving  the  process 
and  resulting  from  such  custody  as  are  supported  by  the 
oath  of  the  officer  making  such  service  and  allowed  by  the 
court;  for  selling  any  boat,  vessel  or  tackle,  apparel  or  fur 
niture  thereof  so  attached,  or  other  goods  attached,  and 
for  advertising  such  sale,  the  same  fees  as  for  sale  on  exe 
cution;  for  advertising  property  for  sale  on  execution  or 
under  any  judgment  or  order  of  sale,  exclusive  of  the  cost 
of  publication,  one  dollar;  for  commissions  for  receiving 
and  paying  over  money  on  execution  or  other  process,  when 
lands  or  personal  property  has  been  levied  on  and  sold,  on 
the  first  one  thousand  dollars,  two  per  cent. ;  for  commis 
sions  for  receiving  and  paying  over  money  on  execution 
without  levy,  or  when  the  lands  or  goods  levied  on  shall 
not  be  sold,  on  the  first  one  thousand  dollars,  one  and  one- 
half  per  cent. ;  the  fees  herein  allowed  for  the  levy  of  an 
execution,  and  for  advertising  and  for  making  or  collecting 


764  JUSTICES'  TBEATISK. 


the  money  on  execution,  shall  be  collected  from  the  judg 
ment-debtor  by  virtue  of  such  execution,  in  the  same  man 
ner  as  the  sum  therein  directed  to  be  made;  for  drawing 
and  executing  a  deed,  inclusive  of  acknowledgment  and 
exclusive  of  stamps,  four  dollars,  to  be  paid  by  the  grantee; 
for  holding  each  inquest,  or  trial  of  right  of  property,  to 
include  all  service  in  the  matter,  except  mileage,  three 
dollars ;  for  making  every  arrest  in  a  criminal  proceeding, 
two  dollars;  for  summoning  a  trial  jury,  in  any  case,  three 
dollars;  for  each  additional  juror,  twenty  cents. 

SEC.  8.  The  following  are  the  fees  of  constable  in  Yuba 
county:  For  serving  summons  in  civil  cases,  for  each  de 
fendant,  fifty  cents;  for  summoning  any  jury  before  a  jus 
tice  of  the  peace,  one  dollar;  for  taking  a  bond  required  by 
law  to  be  taken,  fifty  cents;  for  summoning  each  witness, 
fifteen  cents;  for  serving  an  attachment  against  the  proper 
ty  of  a  defendant,  one  dollar  and  fifty  cents;  for  summon 
ing  and  swearing  a  jury  to  try  the  right  of  property  and  tak 
ing  the  verdict,  one  dollar  and  fifty  cents;  for  receiving  and 
taking  care  of  property  on  execution,  attachment  or  order, 
his  actual  necessary  expenses,  to  be  allowed  by  the  justice 
who  issued  the  execution,  upon  the  affidavit  of  the  consta 
ble  that  such  charges  are  correct  and  the  expenses  were 
necessarily  incurred;  for  collecting  all  sums  on  execution, 
two  per  cent.,  to  be  charged  against  the  defendant  in  the 
execution;  for  serving  a  warrant  or  order  for  the  delivery 
oi  personal  property  or  for  making  an  arrest  in  civil  cases, 
one  dollar  and  fifty  cents;  for  making  an  arrest  in  criminal 
cases,  one  dollar  and  fifty  cents;  for  every  mile  necessarily 
traveled,  in  going  only,  to  serve  any  civil  or  criminal  pro 
cess  or  paper,  or  to  take  a  prisoner  before  a  magistrate 
or  to  prison,  twenty  cents,  but  when  two  or  more  persons 
are  summoned  or  served  in  the  same  suit,  mileage  shall 
be  charged  only  for  the  most  distant  if  they  live  in  the 
same  direction;  for  copy  of  any  writ,  process  or  paper, 
when  demanded  or  required  by  law,  for  each  folio,  twen 
ty  cents ;  for  serving  every  notice,  rule  or  order,  one 
dollar;  for  serving  an  attachment  upon  any  ship,  boat  or 
vessel,  in  proceeding  to  enforce  any  lien  thereon  created 
by  law,  two  dollars;  also,  three  dollars  per  day  for  each  day 


FEES.  765 

while  such  ship,  boat  or  vessel,  is  in  the  actual  custody  of 
the  constable,  and  such  further  necessary  expenses  incurred 
in  serving  the  process  and  resulting  from  such  custody  as 
are  supported  by  the  oath  of  the  officer  making  such  serv 
ice  and  allowed  by  the  court;  for  selling  any  boat,  vessel  or 
tackle,  apparel  or  furniture  thereof,  so  attached,  or  other 
goods  attached,  and  for  advertising  such  sale,  the  same  fees 
as  for  sale  on  execution;  for  advertising  property  for  sale 
on  execution  or  under  any  judgment  or  order  of  sale,  ex 
clusive  of  the  costs  of  publication,  two  dollars ;  for  com 
missions  for  receiving  and  paying  over  money  on  an  execu 
tion  or  other  process,  when  lands  or  personal  property  have 
been  levied  on  and  sold,  on  the  first  one  thousand  dollars, 
two  per  cent. ;  on  all  sums  above  that  amount,  one  per  cent. 
The  commissions  for  receiving  and  paying  over  money  on 
execution  without  levy  or  where  the  lands  or  goods  levied 
on  shall  not  be  sold,  on  the  first  one  thousand  dollars,  one 
and  one-half  per  cent.,  and  one  per  cent,  on  all  over  that 
sum;  the  fees  herein  allowed  for  the  levy  of  an  execution 
and  for  advertising,  and  for  making  or  collecting  the  money 
or  execution,  shall  be  collected  from  the  judgment-debtor 
by  virtue  of  such  execution  in  the  same  manner  as  the  sum 
therein  directed  to  be  made.  For  drawing  and  executing  a 
constable's  deed,  to  include  the  acknowledgment,  three  dol 
lars,  to  be  paid  by  the  grantee;  for  serving  a  writ  of  pos 
session  or  restitution,  putting  any  person  entitled  into  pos 
session  of  premises  and  removing  the  occupant,  five  dol 
lars;  for  attending,  when  required,  on  any  court,  in  person 
or  by  deputy,  for  each  day,  to  be  paid  out  of  the  county 
treasury,  three  dollars;  for  holding  each  inquest  or  trial 
of  right  of  property,  to  include  all  service  in  the  matter 
except  mileage,  five  dollars. 


SECOND 


CRIMINAL   JURISDICTION, 


. 


TABLE   OF  CONTENTS. 


PAKT    SECOND. 


CHAPTER  I.                                     SECTIONS. 
GENEBAL  DEFINITIONS  AND  PBOVISIONS 1-18 

CHAPTER  II. 

OF  THE  PBEVENTION  OF  PUBLIC  OFFENSES 19-  22 

CHAPTER  III. 

OF  THE  INTEBVENTION  OF  THE  OFFICEBS  OF  JUSTICE 23 

CHAPTER  IV. 
SECUBITT  TO  KEEP  THE  PEACE 24-  47 

CHAPTER  V. 

POLICE  IN  CITIES  AND  TOWNS  AND  THBIB  ATTENDANCE  AT  EXPOSED  PLACES  48-  49 

CHAPTER  VI. 
SUPPEESSION  OF  RIOTS f 50-  60 

CHAPTER  VII. 

OF  THE  REMOVAL  OF  CIVIL  OFFICEBS  OTHEBWISE  THAN  BY  IMPEACHMENT  61-  73 

CHAPTER  VIII. 

OF  THE  PBOCEEDINGS  IN  CBIMINAL  ACTIONS  PBOSECUTED  BY  INDICTMENT  74-  85 
CHAPTER^  IX. 

OF  THE  TIME  OF  COMMENCING  CBIMINAL  ACTIONS 86-  91 

CHAPTER  X. 
OF  THE  COMPLAINT  AND  THE  OFFICEBS  AUTHOBIZED  TO  HEAB  IT 92-  94 

CHAPTER  XI. 
WABBANT  OF  ABEEST 95-124 

CHAPTER  XII. 
ABBEST  BY  AN  OFFICES  UNDEB  WABBANT 125-134 

CHAPTER  XIII. 
ABBEST  BY  AN  OFFICEB  WITHOUT  A  WABBANT 135-140 

CHAPTER  XIV. 
ABBEST  BY  A  PBIVATE  PEBSON 141-144 

CHAPTER  XV. 

RETAKING  AFTEB  AN  ESCAPE  OB  RESCUE 145-146 

CHAPTER  XVI. 

EXAMINATION  OF  THE  CASE  AND  DISCHABGE  OF  THE  DEFENDANT,  ETC.  . .  147-182 
CHAPTER  XVII. 

OF  PBOCEEDINGS  AFTEB  COMMITMENT  AND  BEFOBE  INDICTMENT 183-185 

CHAPTER  XVIH. 
POWEBS  AND  DUTIES  OF  A  GBAND  JUBY 186-189 

97 


770  JUSTICES'  TREATISE. 

CHAPTEE  XIX.                                     SECTIONS. 
PEESENTMENT  AND  PBOCEEDINGS  THEEEON 190-196 

CHAPTEE  XX. 
FOEM  OF  INDICTMENT 197-200 

CHAPTEE  XXI. 
CHALLENGING  THE  JURY 201-244 

CHAPTEE  XXII. 

APPEALS,  WHEN  ALLOWED  AND  HOW  TAKEN 245-265 

CHAPTEE  XXIII. 

IN  WHAT  CASES  DEFENDANT  MAY  BE  ADMITTED  TO  BAIL 266-274 

CHAPTEE  XXIV. 

BAIL  UPON  BEING  HELD  TO  ANSWER  BEFOEE  INDICTMENT 275-280 

CHAPTEE  XXV. 
BAIL  UPON  INDICTMENT  BEFOEE  CONVICTION 281-284 

CHAPTEE  XXVI 
BAIL  ON  APPEAL 285-288 

CHAPTEE  XXVII. 

DEPOSIT  INSTEAD  OF  BAIL 289-291 

CHAPTEE  XXVIII. 

SUEEENDEE  OF   THE    DEFENDANT 292-295 

CHAPTEE  XXIX. 

FORFEITURE  OF  THE   EECOGNIZANCE  OE  OF  THE   DEPOSIT  OF   MONEY 296-299 

CHAJTEE  XXX. 

EECOMMITMENT  OE  THE  DEFENDANT  AFTEE  HAVING  GIVEN  BAIL 300-306 

CHAPTEE  XXXI. 
COMPELLING  THE  ATTENDANCE  OF  WITNESSES 307-317 

CHAPTEE  XXXII. 
INQUIRY  INTO  THE  INSANITY  OF  THE  DEFENDANT,  ETC 318 

CHAPTEE  XXXIII. 
ENTITLING  AFFIDAVITS 319 

CHAPTEE  XXXIV. 

EEEOES  AND  MISTAKES  IN  PLEADING  AND  OTHEE  PEOCEEDINGS 320-325 

CHAPTEE  XXXV. 
DISPOSAL  OF  PROPERTY  STOLEN  OR  EMBEZZLED 326-331 

CHAPTEE  XXXVI. 
OF  PROCEEDINGS  IN  JUSTICES',  RECORDERS'  AND  MAYORS'  COURTS 332-377 

CHAPTEE  XXXVII. 
OF  SEARCH-WARRANTS 378-400 

CHAPTEE  XXXVIII. 

OF  PEOCEEDINGS  AGAINST  FUGITIVES  FROM  JUSTICE 401-410 

CHAPTEE  XXXIX. 
COMPROMISING  OFFENSES  BY  LEAVE  OF  COURT 411-417 

CHAPTEE  XL. 
MISCELLANEOUS  PROVISIONS 418^123 

CHAPTEE  XLI. 

OF  THE  COSTS  IN  CRIMINAL  ACTIONS  AND  PEOCEEDINGS 424-432 

CHAPTEE  XLII. 
OF  SUPPLEMENTAL  ACTS ...  433-436 


CRIMINAL    JURISDICTION. 


CHAPTER    I. 


GENERAL  DEFINITIONS  AND  PEG  VISIONS. 

1.  SECTION  2.   A  crime  or  public  offense  is  an  act  or  omission  forbidden 
by  law,  and  to  which  is  annexed,  upon  conviction,  either  of  the  following 
punishments:    1st.  Death.     2d.  Imprisonment.     3d.  Fine.    4th.  Removal 
from  office.     5th.  Disqualification  to  hold  or  enjoy  any  office  of  honor,  trust 
or  profit,  under  this  state. 

2.  SEC.  3.  Public  offenses  are  divided  into:    1st.  Felonies,   ^d.  Misde 
meanors. 

3.  SEC.  4.  A  felony  is  a  public  offense  punishable  by  death  or  by  impris 
onment  in  a  state  prison. 

4.  SEC.  5.  Every  other  public  offense  is  a  misdemeanor. 

5.  SEC.  6.  No  person  can  be  punished  for  a  public  offense,  except  upon 
legal  conviction  in  a  court  having  jurisdiction  thereof. 

6.  SEC.  7.  Every  public  offense  must  be  prosecuted  by  indictment,  ex 
cept:    1st.  "Where  proceedings  are  had  for  the  removal  of  civil  officers  of  the 
state.     2d.  Offenses  arising  in  the  militia  when  in.  actual  service,  and  in  the 
land  and  naval  forces  in  time  of  war,  or  which  this  state  may  keep  with  the 
consent  of  congress  in  time  of  peace.     3d.  Offenses  tried  injustices',  record 
ers'  and  mayors'  courts. 

7.  SEC.  8.  The  proceedings  by  which  a  party  charged  with  a  public  offense 
is  accused  and  brought  to  trial  and  punishment,  shall  be  known  as  a  criminal 
action. 

8.  SEC.  9.  A  criminal  action  shall  be  prosecuted  in  the  name  of  the  peo 
ple  of  the  state  of  California  as  a  party  against  the  party  charged  with  the 
offense. 

9.  SEC.  10.  The  party  prosecuted  in  a  criminal  action  is  designated  in  this 
act  as  the  defendant. 

10.  SEC.  11.  In  a  criminal  action  the  defendant  is  entitled:    1st.  To  a 
speedy  and  public  trial.    2d.  To  be  allowed  counsel  as  in  civil  actions  or  he 
may  appear  and  defend  in  person  or  with  counsel.     3d.  To  produce  witnesses 
on  his  behalf  and  to  be  confronted  with  the  witnesses  against  him  in  the 
presence  of  the  court,  except  that  where  the  charge  has  been  preliminarily 
examined  before  a  committing  magistrate  and  the  testimony  taken  down  by 
question  and  answer  in  the  presence  of  the  defendant,  who  has  either  in 
person  or  by  counsel  cross-examined  or  had  an  opportunity  to  cross-examine 
the  witness;  or  where  the  testimony  of  a  witness  on  the  part  of  the  people, 


772  JUSTICES'  TREATISE. 

who  is  unable  to  give  security  for  his  appearance,  has  been  taken  condition 
ally  in  the  like  manner  in  the  presence  of  the  defendant,  who  has  either  in 
person  or  by  counsel  cross-examined  or  had  an  opportunity  to  cross-examine 
the  witness,  the  deposition  of  such  witness  may  be  read  upon  its  being  satis 
factorily  shown  to  the  court  that  he  is  dead  or  insane  or  cannot  with  due 
diligence  be  found  within  the  state. 

11.  In  a  criminal  case  if  the  court  impose  upon  coun 
sel  against  their  consent  a  limitation  of  time  for  argument 
before  the  jury,  it  is  done  at  the  risk  of  a  new  trial,  if  it 
be  shown  by  the  uncontradicted  affidavits  of  the  counsel 
that  the  prisoner  was  deprived  by  the  limitation  of  the  op 
portunity  of  a  full  defense;  for  this  is   his  constitutional 
right,    without  which    he  cannot    be    lawfully   convicted. 
Courts  have  a  large  discretion  over  the  conduct  of  proceed 
ings  before  them  and  may  limit  counsel  to  reasonable  time. 
But  in  criminal  cases  this  should  be  done,  if  at  all,  only  in 
very  extraordinary  and  peculiar  instances.     13  Cut.  581. 

12.  Before  any  confession  can  be  received  in  evidence 
in  a  criminal  case,  it  must  be  shown  that  it  was  voluntary. 
But  a  confession  is  presumed  to  be  voluntary  unless  the 
contrary  is  shown.     10  Col.  60.          * 

13.  SEC.  12.  No  person  shall  be  subject  to  a  second  prosecution  for  a 
public  offense  for  which  he  has  once  been  prosecuted  and  di:ly  convicted  or 
acquitted. 

14.  A  court  cannot  in  a  case  where  the  prisoner  has  been 
acquitted  of  an  alleged  crime  arrest  the  judgment  and  retry 
the  cause.     The  court  has  no  longer  any  jurisdiction  over 
him.     The  word   "issue"  in   section   439,   criminal   code, 
means  the  issue  in  controversy,  not  the  one  that  has  been 
settled  by  the  jury  and  found  in  favor  of  the  defendant;  and 
the  words,  "placing  the  parties  in  the  same  position  that 
they  occupied  before  the  trial, "  simply  apply  in  reference  to 
the  issues  undisposed  of. 

15.  The  defendant  was  convicted  of  manslaughter  upon 
an  indictment  charging  the  crime  of  murder.     The  verdict 
was  on  his  motion  set  aside :  Held,  that  to  a  second  trial 
for  murder,  upon  the  same  or  a  different  indictment,  de 
fendant  can  plead  the  former  conviction  of  manslaughter  as 
an  acquittal  of   the  crime  of   murder,  and  that  under  the 
same  indictment  the  defendant  may  be  again  tried  and  con 
victed  for  manslaughter.     4  Cal.  376. 


PREVENTION  OF  PUBLIC  OFFENSES.  773 

16.  A  conviction  for  manslaughter  is  an  acquittal  of  the 
charge  of  murder,  and  the  verdict,  though  general  in  its 
terms,  must,  by  legal  operation,  amount  to  an  acquittal  of 
every  higher  offense  charged  in  the  indictment  than  the 
particular  one  of  which  the  prisoner  is  found  guilty.  If 
such  were  not  the  case  the  party,  after  undergoing  punish 
ment  for  manslaughter,  might  be  arraigned  and  tried  again 
for  murder,  notwithstanding  he  had  been  compelled  to  an 
swer  this  charge  upon  the  first  trial  and  the  jury  had  passed 
upon  the  same.  4  CaL  376,  377.  The  verdict  of  man 
slaughter  is  as  much  an  acquittal  of  the  charge  of  murder 
as  a  verdict  pronouncing  his  entire  innocence  would  be,  for 
the  effect  of  both  is  to  exempt  him  from  the  penalty  of  the 
law  for  such  crime.  4  CaL  377. 

17.  SEC.  13.  No  person  shall  be  compelled  in  a  criminal  action  to  be  a 
witness  against  himself,  nor  shall  a  person  charged  with  a  public  offense  be 
subjected  before  conviction  to  any  more  restraint  than  is  necessary  for  his 
detention  to  answer  the  charge. 

18.  SEC.  14.  No  person  can  be  convicted  of  a  public  offense  unless  by  the 
verdict  of  a  jury,  accepted  and  recorded  by  the  court,  or  upon  a  plea  of 
guilty,  or  upon  judgment  against  him  upon  a  demurrer  to  the  indictment  in 
the  case  mentioned  in  section  two  hundred  and  ninety-three. 


CHAPTER   II. 
OF  THE  PEEYENTION  OF  PUBLIC  OFFENSES. 

19.  SEC.  15.  Lawful  resistance  to  the  commission  of  a  public  offense  may 
be  made :    1st.  By  the  party  about  to  be  injured.     2d.  By  other  parties. 

20.  SEC.  16.  Resistance  sufficient  to  prevent  the  offense  may  be  made  by 
the  party  about  to  be  injured:    1st.  To  prevent  an  offense  against  his  person 
or  his  family,  or  some  member  thereof.     2d.  To  prevent  an  illegal  attempt 
by  force  to  take  or  injure  property  in  his  lawful  possession. 

21.  The  owner   of  property  in  possession  of  the  same, 
has  a  right  to  use  such  force   as  is  necessary  to  prevent 
a  forcible  trespass,    and  if  in   doing   so   he   is  compelled 
to  kill  the  trespasser  he  is  justifiable.     If  the  trespasser  is 
not  armed  and  simply  attempts  the  trespass  without  force 
of  arms,  and  neither  intends  nor  endeavors  to  commit  a 
felony  himself,  then  the  owner  would  not  be  justified  in 
killing  him.     But  when  the  trespasser  goes  with  the  intent 
and  with  the  means  to  commit  a  felony  if  necessary  to  ac- 


774  JUSTICES'  TREATISE. 

complisli  the  end  intended,  the  owner  of  the  property  may 
repel  force  by  force.     8  Cat.  343,  344. 

22.  If  A  go  to  the  house  of  B,  who  has  taken  posses 
sion  of  his  land  and  built  a  house  thereon,    for  the  pur 
pose  of  forcibly  putting  him  out  and  tearing   down  the 
house,  it  is  an  unlawful  act,  and  if  A  kills  B  in  pursuing  that 
purpose  it  is  murder  or  manslaughter,  according  to  the 
facts  of  the  case.     10  Col.  83. 

23.  SEC.  17.  Any  other  person  in  aid  or  defense  of  the  person  about  to 
be  injured,  may  make  resistance  sufficient  to  prevent  the  offense. 


CHAPTER   III. 

OF  THE  INTEEYENTION   OF  THE   OFFICEES   OF 

JUSTICE. 

24.  SEC.  18.  Public  offenses  may  be  prevented  by  the  intervention  of  the 
officers  of  justice:  1st.  By  requiring  security  to  keep  the  peace.  2d.  By 
forming  a  police  in  cities  and  towns,  and  by  requiring  their  attendance  in  ex 
posed  places.  3d.  By  suppressing  riots. 

SEC.  19.  "Whenever  the  officers  of  justice  are  authorized  to  act  in  the 
prevention  of  public  offenses,  other  persons  who  by  their  command  act  in 
their  aid,  are  justified  in  so  doing. 


CHAPTER-    IV. 
SECUKITY  TO  KEEP  THE  PEACE. 

25.  SEC.  20.  A  complaint  may  be  laid  before  any  of  the  magistrates  men 
tioned  in  section  one  hundred  and  three,  that  a  person  has  threatened  to 
commit  an  offense  against  the  person  or  property  of  another. 

26.  Before   the   institution  of  the   office   of  justice   of 
the  peace  in  England,  the  public  order  was  maintained  by 
officers  who  bore  the  name  of  conservators  of  the  peace, 
and  they  were  empowered  to  preserve  the  peace,  to  sup 
press  riots  and  affrays,  to  take  securities   for  the  peace, 
and  to  apprehend   and   commit  felons   and   other  inferior 
criminals.     The  same   power  is  conferred  upon  a  variety 
of  officers  in  England  and  the  United  States  by  simply  de 
claring  them  by  statute  to  be  conservators  of  the  peace, 
and  the  constitution  of  this  state  confers  the  same  authority 


SECUEITY  TO  KEEP  THE  PEACE.  775 

in  the  same  terms  upon  the  justices  of*  this  court  and  the 
district  judges.     1  Col.  13. 

27.  Between  preparation  for  an  attempt  and  an  attempt 
itself  there  is  a  wide  difference.     The  preparation  consists 
in  devising  or  arranging  the  means  or  measures  necessary 
for  the  commission  of  an  offense;  the  attempt  is  the  direct 
movement  toward   the  commission  after  the  preparations 
are  made.     To  illustrate :  a  party  may  purchase  and  load 
a  gun  with  the  declared  intention  to  shoot  his  neighbor, 
but  until  some  movement  is  made  to  use  the  weapon  upon 
the  person  of  his  intended  victim  there  is  only  preparation 
and  not  an  attempt.     For  the  preparation  he  may  be  held 
to  keep  the  peace:   but  he  is  not  chargeable  with  any 
attempt  to  kill.     14  Cal  159,  160. 

28.  SEC.  21.  When  the  complaint  is  laid  before  the  magistrate,  lie  shall 
examine  on  oath  the  complainant  and  any  witnesses  he  may  produce,  and 
shall  take  their  depositions  in  writing  and  cause  them  to  be  subscribed  by 
the  parties  making  them. 

29.  SEC.  22.  If  it  appears  from  the  depositions  that  there  is  just  reason 
to  fear  the  commission  of  the  offense  threatened  by  the  person  so  complained 
of,  the  magistrate  shall  issue  a  warrant,  directed  generally  to  the  sheriff  of 
the  county  or  any  constable,  marshal  or  policeman  in  the  state,  reciting  the 
substance  of  the  complaint  and  commanding  the  officer  forthwith  to  arrest 
the  person  complained  of  and  bring  him  before  the  magistrate. 

30.  SEC.  23.  When  the  person  complained  of  is   brought  before  the 
magistrate,  if  the  charge  be  controverted,  the  magistrate  shall  take  testimony 
in  relation  thereto.    The  evidence  must  be  reduced  to  writing  and  subscribed 
by  the  witnesses . 

31.  SEC.  24.  If  it  appear  that  there  is  no  just  reason  to  fear  the  commis 
sion  of  the  offense  alleged  to  have  been  threatened,  the  person  complained 
of  shall  be  discharged. 

32.  SEC.  25.  If,  however,  there  be  just  reason  to  fear  the  commission  of 
the  offense,  the  person  complained  of  may  be  required  to  enter  into  a  bond  in 
such  sum,  not  exceeding  five  thousand  dollars,  as  the  magistrate  may  direct, 
with  one  or  more  sufficient  securities,  to  keep  the  peace  towards  the  people 
of  this  state,  and  particularly  towards  the  complainant.     The  bond  shall  be 
valid  and  binding  for  six  months,  and  may,  upon  the  renewal  of  the  com 
plaint,  be  extended  for  a  longer  period,  or  a  new  bond  may  be  required. 

33.  SEC.  26.  If  the  bond  required  by  the  last  section  be  given  the  party 
complained  of  shall  be  discharged.    If  he  do  not  give  it,  the  magistrate  shall 
commit  him  to  prison,  specifying  in  the  warrant  the  requirement  to  give 
security,  the  amount  thereof  and  the  omission  to  give  the  same. 

34.  SEC.  27.  If  the  person  complained  of  be  committed  for  not  giving 
the  bond  required,  he  may  be  discharged  by  any  magistrate  upon  giving  the 
same. 

35.  SEC.  28.  A  bond  given,  as  provided  in  section  twenty-five,  must  be 
filed  by  the  magistrate  in  the  office  of  the  clerk  of  the  county. 


776  JUSTICES'  TREATISE. 

36.  SEC.  29.  Any  person  who,  in  the  presence  of  a  court  or  magistrate, 
shall  assault  or  threaten  to  assault  another  or  to  commit  any  offense  against 
his  person  or  property,  or  who  shall  contend  with  another  with  angry  words, 
may  be  ordered  by  the  court  or  magistrate  to  give  security,  as  is  provided  in 
section  twenty-fifth,  or,  if   he  refuse  to  do  so,  may  be  committed,  as  pro 
vided  in  section  twenty-sixth. 

37.  SEC.  30.  A  bond  to  keep  the  peace  shall  be  broken  on  conviction  of 
the  person  complained  against  of  a  breach  of  the  peace. 

38.  SEC.  31.  Upon  the  district  attorney's  producing  evidence  of  such 
conviction  to  the  county  court  of  the  county,  the  court  shall  order  the  bond 
to  be  prosecuted,  and  the  district  attorney  shall  thereupon  commence  an 
action  on  the  same,  in  the  name  of  the  people  of  this  state. 

39.  SEC.  32.  In  the  action,  the  offense  stated  in  the  record  of  conviction 
shall  be  alleged  as  a  breach  of  the  bond,  and  shall  be  conclusive  evidence 
thereof. 

40.  SEC.  33.  No  security  to  keep  the  peace  or  be  of  good  behavior  shall 
be  required  except  as  prescribed  in  this  chapter. 

41.     The  following  is  a  form   of    complaint  to   obtain 
surety  of  peace : 

In  the  justice's  court  of  ....  township,  in  the  county  of  . . . .,  state  of  .... 

State  of- I 

county  of J 

Personally  appeared  before  me  this  ....   day  of  . . . . ,  18  . . ,    , 

who  deposes  and  says,  that  on  the  ....  day  of  . . . . ,  18 . . ,  one ,  in 

said  county,  did  threaten  to  beat,  bruise  or  wound  [or,  "kill,"  or  "commit 
other  offense,"  as  the  case  may  be],  and  that  he  has  just  cause  to  fear,  and 

does  fear,  that  the  said will  beat,  bruise  or  wound  [or,  etc.]  him, 

this  deponent;  all  of  which  is  contrary  to  the  form  of  the  statute  in  such 
cases  made  and  provided,  and  against  the  peace  and  dignity  of  the  people  of 

the  state  of" "Wherefore  deponent  prays  that  a  warrant  may  be  issued 

for  the  arrest  of ,  and  that  he  may  be  brought  before  a  magistrate 

and  dealt  with  according  to  law. 


Subscribed  and  sworn  to  before  me,  this day  of ,  18 ... 

Justice  of  the  peace. 

42.     The  following  is  a  form  of  warrant  of  arrest : 

In  the  justice's  court  of  the township,  in  the  county  of ,  state  of 

State  of  j 

county  of  I 

The  people  of   the  state  of   to  any  sheriff,  constable,  marshal  or 

policeman,  in  the  county  of  A  complaint,  upon  oath,  having  been 

this  day  laid  before  me,  by ,  in  said  county,  that did 

threaten  to  beat,  etc.  [here  state  the  allegations],  and  that  he  has  just  cause 

to  fear,  and  does  fear,  that  the  said will  beat,  etc.  [here  repeat  the 

allegation]  him,  the  said ,  [if  the  threat  be  to  injure  property  state 

the  facts  as  alleged],  you  are  therefore  commanded  forthwith  to  arrest  the 
above-named and  bring  him  before  me  forthwith,  at  my  office  in 


SECURITY  TO  KEEP  THE  PEACE.  777 

said  township  in  said  county  of  ,  . . . ,  or  in  case  of  my  absence  or  inability 
to  act,  before  the  nearest  or  most  accessible  magistrate  in  this  county. 

Dated  at  nay  office  in  said  township,  in  said  county  of     . . .,  this  ....  day 
of  ..    .,  A.D.  18.. 


Justice  of  the  peace  of  said  township. 

43.    The  following  is  a  return  of  the  sheriff  or  constable 
to  be  indorsed  on  the  warrant : 

I  hereby  certify  that  I  received  the  within  warrant  on  the   day  of 

,  A.D.  18 . . ,  and  served  the  said  warrant  by  arresting  the  within-named 

defendant  and  bringing  him  before ,  justice  of  the  peace  in  said 

township,  [or,  "and  the  said being  absent  or  unable  to  act,  before 

,  who  is  the  nearest  magistrate  in  this  county  "]. 


Constable  for  ....  township. 

44.  If,  from  any  cause  the  examination  cannot  be  had 
at  the  time  the  writ  shall  have  been  returned,  the  ac 
cused  may  be  admitted  to  bail  until  the  day  appointed  for 
the  examination.  If,  however,  he  shall  fail  to  give  the  re 
quired  bail,  he  shall  be  committed  for  examination  to  the 
sheriff  of  the  county. 

The  following  is  the  form  of.  certificate : 

The  within  named  ....  having  been  brought  before  me  under  this  war 
rant,  and  the  examination  having  been  continued  upon  the  facts  set  forth  in 
the  affidavit  of  defendant  [or,  "complaint  as  the  case  may  be"];  it  was  or 
dered  that  the  said  defendant  give  bond  with  sufficient  security  that  he  will 
appear  for  examination  on  the  ....  day  of  .....  A.D.  1870,  and  said  defend 
ant  refusing  to  do  so  was  committed  for  examination  to  the  sheriff  of  the 
county  of  .... 

Dated  this day  of ,  A.D.  187. . 


Justice  of  the  Peace  of  said  township. 

If,  however,  the  said  bond  be  given,  insert  "and  said  bond  having  been 
given' '  as  required,  said  ....  was  discharged  until  the  day  set  for  examina 
tion. 

45.     The  following  is  a  form  of  order  of  discharge : 

State  of | 

county  of j 

* 

In  justices'  court  of  township. 

The  within-named  defendant  was  arrested  and  brought  before  me  . .  . 
justice  of  the  peace  in  and  for  said  township,  on  the  ....  day  of  . . . .,  A.D. 
187 .  .j  and  after  hearing  the  testimony  produced  by  said  complainant,  in  sup 
port  of  the  allegations  in  his  complaint,  and  duly  considering  the  same,  I 
find  no  just  reason  why  said  complainant  should  fear  the  commission  of  the 

98 


778  JUSTICES'  TEEATISE. 

injuries  therein  alleged.     It  is  therefore  ordered  that  said  defendant  be  and 
he  is  hereby  discharged. 

Dated  at  ....  township  .  .  .  .  ,  January  1st,  18  .  . 

............  ,  justice. 

[If,  however,  the  justice  find  the  complaint  true,  he  shall  commit  the  de 
fendant  unless  he  give  such  bond  as  the  justice  shall  order.] 

46.     The  following  is  the  form  of  a  peace  bond  : 

State  of  ......  , 

county  of  ...... 

......  court. 

Personally  appeared  in  the  ....  court,  ....  in  and  for  the  ....  county  of 
.  .  .  .  ,  in  open  court  .  .  .  .  ,  and  acknowledged  themselves  and  each  of  them 
justly  indebted  to  the  people  of  the  State  of  California,  in  the  sum  of  .... 
dollars. 

Sealed  with  their  seals,  and  dated  this  ....  day  of  .  .  .  .,  A.D.  18.  ... 

............        [L.S.] 

The  condition  of  the  above  obligation  is  such,  that  whereas  the  above 
bounden  ....  has  been  held  to  keep  the  peace  by  order  of  ....  of  said.  .  .  ., 
made  on  the  ....  day  of  .  .  .  .,  A.D.  18.  . 

Now,  if  the  said  above  bounden  ....  shall  well  and  truly  keep  the  peace  to 
wards  the  people  of  the  State  of  California,  and  particularly  towards  .  .  .  .  ,  of 
said  .....  for  the  space  of  six  months  from  the  date  of  said  order,  then  this 
obligation  is  to  be  null  and  void,  otherwise  to  remain  in  full  force  and  effect. 

Signed  and  sealed  the  day  and  year  first  above  written. 


Witnessed  and  approved  by  me  this  ____  day  of  ____  ,  A.D.  18  .  . 

............     [L.S.] 


47.  The  following  is  a  form  of  commitment  on  complaint 
to  obtain  surety  of  the  peace  : 

State  of  ......  ,  | 

county  of  ......  j  ss> 

To  the  sheriff  of  said  county,  greeting: 

Whereas,  .  .  .  .  ,  this  day  made  complaint  to  me  in  writing,  on  oath,  that 
....  on  the  ----  day  of  ----  last  past,  threatened  to,  etc.,  [as  in  the  com 
plaint];  and,  whereas,  it  appearing  to  me  upon  the  examination  of  said 
complaint,  ....  and  ....  witnesses,  duly  made  on  oath,  reduced  to  writing 
and  subscribed  by  them,  that  there  was  just  reason  to  fear  the  commis 
sion  of  said  offense  by  the  said  .  .  .  .  ;  and  he  being  brought  before  me  on 
my  warrant,  was  required  to  enter  into  recognizance  in  the  sum  of  .  .  .  .  , 
with  sufficient  surety  to  keep  the  peace  towards  the  people  of  this  state, 
and  particularly  towards  said  complainant  for  the  period  of  six  months; 
and  the  said  ....  having  refused  [or,  "  neglected"]  to  find  such  security, 
you  are  therefore  commanded  in  the  name  of  the  people  of  the  State  of  Cal 
ifornia,  forthwith  to  convey  him  to  the  common  jail  of  the  said  county  and 
to  deliver  him  to  the  keeper  thereof,  who  is  hereby  required  to  receive  the 


SUPPRESSION  OF  RIOTS.  779 

said  ....  into  his  custody,  and  him  safely  keep  in  the  said  jail  until  he  shall 
find  such  security  or  he  be  discharged  by  due  course  of  law. 
Witness,  etc. 


Justice  of  the  Peace. 


CHAPTER    V. 

POLICE  IN  CITIES  AND  TOWNS  AND  THEIE  AT 
TENDANCE  AT  EXPOSED  PLACES. 

48.  SEC.  34.  The  organization  and  regulation  of  the  police  in  cities  and 
towns  in  this  state  are  governed  by  special  laws. 

49.  SEC.  35.  The  mayor  or  other  officer  having  the  direction  of  the  police 
in  a  city,  town  or  village,  shall  order  a  force  sufficient  to  keep  the  peace  to 
attend  any  public  meeting  when  he  is  satisfied  that  a  breach  of  the  peace  is 
to  be  apprehended. 


CHAPTER   VI. 
SUPPEESSION  OF  EIOTS. 

50.  SEC.  36.  When  a  sheriff  or  other  public  officer  authorized  to  execute 
process  shall  find  or  have  reason  to  apprehend  that  resistance  will  be  made 
to  the  execution  of  his  process,  he  may  command  as  many  male  inhabitants 
of   his  county  as  he  may  think  proper,  and  any  military  company  or  com 
panies  in  the  county,  armed  and  equipped,  to  assist  him  in  overcoming  the 
resistance,  and,  if  necessary,  in  seizing,  arresting  and  confining  the  resist- 
ers  and  their  aiders  and  abettors,  to  be  punished  according  to  law. 

51.  SEC.  37.  The  officer  shall  certify  to  the  court  from  which  the  process 
issued,  the  names  of  the  resisters  and  their  aiders  and  abettors,  to  the  end 
that  they  may  be  proceeded  against  for  their  contempt  of  court. 

52.  SEC.  38.  Every  person  commanded  by  a  public  officer  to  assist  him 
in  the  execution  of  process  as  provided  in  section  thirty-six,  who  shall  with 
out  lawful  cause  refuse  or  neglect  to  obey  the  command,  shall  be  deemed 
guilty  of  a  misdemeanor. 

53.  SEC.  39.  If  it  appear  to  the  governor  that  the  power  of  any  county  is 
not  sufficient  to  enable  the  sheriff  to  execute  process  delivered  to  him,  he 
shall,  on  the  application  of  the  sheriff,  order  such  military  force  from  any 
other  county  or  counties  as  shall  be  necessary. 

54.  SEC.  40.  WThere  six  or  more  persons,  whether  armed  or  not,  shall  be 
unlawfully  or  riotously  assembled  in  any  city  or  town,  the  sheriff  of  the 
county  and  his  deputies,  the  mayor  and  aldermen  of  the  city,  or  the  con 
stable  of  the  town  and  the  justice  of  the  peace,  shall  go  among  the  persons 
so  assembled,  or  near  to  them  as  possible,  and  shall  command  them  in  the 
name  of  the  people  of  the  state  immediately  to  disperse. 

55.  SEC.  41.  If  the  persons  assembled  do  not  immediately  disperse,  the 


780  JUSTICES'  TREATISE. 

magistrate  and  officers  shall  arrest  them,  that  they  may  be  punished  accord 
ing  to  law;  and  for  that  purpose  may  command  the  aid  of  all  persons  present 
or  within  the  county. 

56.  SEC.  42.  If  a  person  so  commanded  to  aid  the  magistrates  or  officers 
neglect  or  refuse  to  do  so,  he  shall  be  deemed  guilty  of  a  misdemeanor  and 
shall  be  punished  accordingly. 

57.  SEC.  43.  If  a  magistrate  or  officer,  having  notice  of  an  unlawful  or 
riotous  assembly,  as  provided  in  section   forty,  neglect  to  proceed  to  the 
place  of  assembly,  or  as  near  thereto  as  he  can  with  safety,  and  to  exercise 
the  authority  with  which  he  is  invested  for  siippressing  the  same  and  arrest 
ing  the  offenders,  he  shall  be  deemed  guilty  of  a  misdemeanor. 

58.  SEC.  44.  If  the  persons  so  assembled  and  commanded  to   disperse 
do  not  immediately  disperse,  any  two  of  the  magistrates  or  officers  before 
mentioned  may  command  the  aid   of  a   siifficient  number  of  persons,  and 
may  proceed  in  such  manner  as  in  their  judgment  is  necessary  to  disperse 
the  assembly  and  arrest  the  offenders. 

59 .  SEC.  45.  When  an  armed  force  is  called  out  for  the  purpose  of  sup 
pressing  an  unlawful  or  riotous  assembly  or  arresting  the  offenders,  it  shall 
obey  such  orders  in  relation  thereto  as  may  have  been  made  by  the  governor 
or  by  a  judge  of  a  court  of  record,  or  the  sheriff  of   the  county,  or  by  any 
two  of  the  magistrates  or  officers  mentioned  in  section  forty. 

60.  SEC.  48.  When  the  governor  shall  be  satisfied  that  the  execution  of 
civil  or  criminal  process  has  been  forcibly  resisted  in  any  county  by  bodies 
of  men,  or  that  combinations  to  resist  the  execution  of  process  by  force  ex 
ist  in  any  county,  and  that  the  power  of  the  county  has  been  exerted  and 
has  not  been  sufficient  to  enable  the  officer  having  the  process  to  execute  it, 
he  may  on  the  application  of  the  officer,  or  of  the  district  attorney,  or  county 
judge  of  the  county,  by  proclamation  to  be  published  in  such  papers  as  he 
shall  direct,  declare  the  county  to  be  in  a  state  of  insurrection,  and  may 
order  into  the  service  of  the  state  such  number  and  description  of  volunteer 
or  uniform  companies  or  other  militia  of  the  state  as  he  shall  deem  neces 
sary,  to  serve  for  such  term   and  under  the  command  of  -such   officer   or 
officers  as  he  shall  direct. 


CHAPTER   VII. 

OF  THE  EEMOVAL  OF  CIVIL  OFFICEES  OTHEK- 
AVISE  THAN  BY  IMPEACHMENT. 

61.  SEC.  70.   An  accusation  in  writing  against   any  district,  county  or 
township  officer  for  willful  or  corrupt  misconduct  in  office  may  be  presented 
by  the  grand  jury  of  the  county  for  which  the  officer  accused  is  elected  or 
appointed. 

62.  SEC.  71.  The  accusation  shall  state  the  offense  charged  in  ordinary 
and  concise  language  and  without  repetition. 

63.  SEC.  72.  The  accusation  shall  be  delivered  by  the  foreman  of  the 
grand  jury  to  the  district  attorney  of  the  county,  who  shall  cause  a  copy 
thereof  to  be  served  upon  the  defendant,  and  require  by  notice  in  writing 


PROCEEDINGS  IN  CRIMINAL  ACTIONS. 


781 


of  not  less  than  ten  days  that  he  appear  before  the  district  court  of  the 
county  at  the  next  term  and  answer  the  accusation.  The  original  accusa 
tion  shall  then  be  filed  with  the  clerk  of  the  district  court. 

64.  SEC.  73.  The  defendant  must  appear  at  the  time  appointed  in  the 
notice  and  answer  the  accusation,  unless  for  some  sufficient  cause  the  court 
assign  another  day  for  that  purpose.     If  he  do  not  appear,  the  court  may 
proceed  to  hear  and  determine  the  accusation  in  his  absence. 

65.  SEC.  74.  The  defendant  may  answer  the  accusation,  either  by  object 
ing  to  the  sufficiency  thereof  or  of  any  article  therein,  or  by  denying  the 
truth  of  the  -same. 

66.  SEC.  75.  If  he  object  to  the  legal  sufficiency  of  the  accusation,  the 
objection  must  be  in  writing,  but  need  not  be  in  any  specific  form,  it  being 
sufficient  if  it  present  intelligibly  the  grounds  of  the  objection. 

67.  SEC.  76.  If  he  deny  the  truth  of  the  accusation,  the  denial  may  be 
oral  and  without  oath,  and  shall  be  entered  upon  the  minutes. 

68.  SEC.  77.  If  an  objection  to  the  sufficiency  of  the  accusation  be  no' 
sustained  the  defendant  shall  be  required  to  answer  the  accusation  forth 
with. 

69.  SEC.  78.  If  the  defendant  plead  guilty  or  refuse  to  answer  the  ac 
cusation,  the  court  shall  render  judgment  of  conviction  against  him.     If  he 
deny  the  matters  charged  the  court  shall  immediately,  or  at  such  time  as 
they  may  appoint,  proceed  to  try  the  accusation. 

70.  SEC.  79.  The  trial  shall  be  by  a  jury,  and  shall  be  conducted  in  all 
respects  in  the  same  manner  as  the  trial  of  an  indictment  for  a  misde 
meanor. 

71.  SEC.  80.  The  district  attorney  and  the  defendant  shall  be  respect 
ively  entitled   to  such  processes  as  may  be  necessary  to  enforce  the  at 
tendance  of  witnesses  as  upon  a  trial  of  an  indictment. 

72.  SEC.  81.  Upon  a  conviction,  the  court  shall  immediately  or  at  such 
other  time  as  the  court  may  appoint,  pronounce  judgment  that  the  defend 
ant  be  removed  from  office;  but  to  warrant  a  removal,  the  judgment  must 
be  entered  upon  the  minutes,  assigning  therein  the  causes  of  such  removal. 

73.  SEC  82.  From  a  judgment  of  removal  an  appeal  may  be  taken  to  the 
supreme  court  in  the  same  manner  as  from  a  judgment  in  a  civil  action;  but 
until  such  judgment  be  reversed  the  defendant  shall  be  suspended  from  his 
office.     Pending  the  appeal,  the  office  may  be  filled  as  in  case  of  vacancy. 


CHAPTER   VIII. 

OF   THE   PROCEEDINGS  IN   CRIMINAL  ACTIONS 
PROSECUTED  BY  INDICTMENT. 

74.  SEC.  84.  Every  person  whether  an  inhabitant  of  this  or  any  other 
state  or  county,  or  of  a  territory  or  district  of  the  United  States,  shall  be  lia 
ble  to  punishment  by  the  laws  of  this  state  for  a  public  offense  committed  by 
him  therein,  except  where  it  is  by  law  cognizable  exclusively  in  the  courts  of 
the  United  States. 


782 


JUSTICES    TREATISE. 


75.  SEC.  85.  When  the  commission  of  a  public  offense  commenced  with 
out  the  state  is  consummated  within  the  boundaries  thereof,  the  defendant 
shall  be  liable  to  punishment  in  this  state,  though  he  were  without  the  state 
at  the  time  of  the  commission  of  the  offense  charged :  provided,  he  consum 
mated  the  offense  through  the  intervention  of  an  innocent  or  guilty  agent 
without  this  state,  or  any  other  means  proceeding  directly  from  himself,  and 
in  such  case  the  jurisdiction  shall  be  in  the  county  in  which  the  offense  is 
consummated. 

76.  SEC.  86.  When  an  inhabitant  or  resident  in  this  state  shall  by  any 
previous  appointment  or  engagement  fight  a  duel  or  be  concerned  as  a  second 
therein  without  the  jurisdiction  of  this  state,  and  in  such  duel  a  wound  shall 
be  inflicted  on  any  person  whereof  he  shall  die  within  the  state,  the  jurisdic 
tion  of  the  offense  shall  be  in  the  county  where  the  death  shall  happen. 

77.  SEC.  87.  When  a  public  offense  is  committed  in  part  in  one  county 
and  in  part  in  another,  or  the  acts  or  effects  thereof  constituting  or  requisite 
to  the  consummation  of  the  offense  occur  in  two  or  more  counties,  the  juris 
diction  shall  be  in  either  county. 

78.  SEC.  88.  When  a  public  offense  is  committed  on  the  boundary  of  two 
or  more  counties,  or  within  five  hundred  yards  thereof,  the  jurisdiction  shall 
be  within  either  county. 

79.  SEC.  89.     When  an  offense  is  committed  within  this  state  on  board  a 
vessel  navigating  a  river,  bay  or  slue,  or  lying  therein  in  the  prosecution  of 
her  voyage,  the  jurisdiction  shall  be  in  any  county  through  which  the  vessel 
is  navigated  in  the  course  of  her  voyage,  or  in  the  county  where  the  voyage 
shall  terminate. 

80.  SEC.  90.  The  jurisdiction  of  an  indictment  for  the  crime  of  forcibly 
stealing,  taking  or  arresting  any  man,  woman  or  child  in  this  state  and  car 
rying  him  or  her  into  any  other  county,  state  or  territory,  or  for  forcibly  tak 
ing  or  arresting  any  person  or  persons  whomsoever,  with  a  design  to  take 
him  or  her  out  of  this  state,  without  having  established  a  claim  according  to 
the  laws  of  the  United  States,  or  for  hiring,  persuading,  enticing,  decoying 
or  seducing  by  false  promises,  misrepresentations,  and  the  like,  any  negro, 
mulatto  or  colored  person  to  go  out  of  this  state,  to  be  taken  or  removed 
therefrom  for  the  purpose  and  with  the  intent  to  sell  such  negro,  mulatto  or 
colored  person  into  slavery  or  involuntary  servitude,  or  otherwise  to  employ 
him  or  her  for  his  or  her  own  use  or  for  the  use  of  another,  without  the 
free  will  and  consent  of  such  negro,  mulatto  or  colored  person,  shall  be  in 
any  county  in  which  the  offense  was  committed,  or  into  or  out  of  which  the 
person  iipon  whom  the  offense  was  committed  may  in  the  prosecution  of  the 
offense  have  been  brought,  or  in  which  an  act  shall  be  done  by  the  offender 
in  investigating,  procuring,  promoting,  aiding  in,  or  being  accessory  to  the 
commission  of  the  offense,  or  in  abetting  the  parties  therein  concerned. 

81.  SEC.  91.  When  the  offense  either  of  bigamy  or  incest  is  committed  in 
one  county  and  the  defendant  is  apprehended  in  another,  the  jurisdiction 
shall  be  in  either  county. 

82.  SEC.  92.  When  property  feloniously  taken  in  one  county  by  burglary, 
robbery,  larceny  or  embezzlement  has  been  brought  into  another,  the  juris 
diction  of  the  offense  shall  be  in  either  county.     But  if  at  any  time  before 
the  conviction  of  the  defendant  in  the  latter,  he  be  indicted  in  the  former 
county,  the  sheriff  of  the  latter  county  shall  upon  demand  deliver  him  to  the 


COMMENCING  CBIMINAL  ACTIONS.  783 

sheriff  of  the  former  county,  upon  being  served  with  a  copy  of  the  indict 
ment,  and  upon  receipt,  indorsed  thereon  by  the  sheriff  of  the  former  county, 
of  the  body  of  the  offender,  and  shall  on  filing  the  copy  of  the  indictment 
and  receipt,  be  exonerated  from  all  liability  in  respect  to  the  custody  of  the 
offender. 

83.  SEC.  93.  In  the  case  of  an  accessory  before  or  after  the  fact  in  the 
commission  of  a  public  offense,  the  jurisdiction  'shall  be  in  the  county  where 
the  offense  of  the  accessory  was  committed,  notwithstanding  the  principal 
offense  was  committed  in  another  county. 

84.  SEC.  94.  When  an  act  charged  as  a  public  offense  is  within  the  juris 
diction  of  another  state  or  territory,  as  well  as  of  this  state,  a  conviction  or 
acquittal  thereof  in  such  state  or  territory  shall  be  a  bar  to  a  prosecution 
therefor  in  this  state. 

85.  SEC.  95.  When  an  offense  is  within  the  jurisdiction  of  two  or  more 
counties,  a  conviction  or  acquittal  thereof  in  one  county  shall  be  a  bar  to  a 
prosecution  or  indictment  therefor  in  another. 


CHAPTER   IX. 

OF   THE  TIME    OF  COMMENCING  CBIMINAL 

ACTIONS. 
> 

86.  SEC.  96.  There  shall  be  no  limitation  of  time  within  which  a  prose 
cution  for  murder  must  be  commenced.     It  may.be  commenced  at  any  time 
after  the  death  of  the  person  killed. 

87.  SEC.  97.     An  indictment  for  any  other  felony  than  murder  must  be 
found  within  three  years  after  its  commission. 

88.  SEC.  98.  An  indictment  for  any  misdemeanor  must  be  found  within 
one  year  after  its  commission. 

89.  SEC.  99.  If,  when  the  offense  is  committed  the  defendant  be  out  of 
the  state,  the  indictment  may  be  found  within  the  term  herein  limited  after 
his  coming  within  the  state,  and  no  time  during  which  defendant  is  not  an 
inhabitant  of,  or  usually  resident  within  the  state,  shall  be  a  part  of  the 
limitation. 

90.  The  last   section  includes  the  case  of  a  defendant 
leaving  the  state  after  the  commission  of  the  crime  as  well 
as  the  case  of  his  absence  from  the  state  at  the  time  of  its 
perpetration,  and  applies  to  all  offenses.    People  vs.  Montejo, 
18  Cal.  38. 

91.  If  the  defendant  is  out  of  the  state  a  portion  of  the 
time  it  must  be  so  averred  in  the  indictment.     Prima  facie 
the  lapse  of  time  is  a  good  defense,  and  where  the  statutory 
exception  is  relied  on,  it  must  be  set  up.     People  vs.  Miller, 
12  Cal.  291. 


784  JUSTICES'  TEEATISE. 


CHAPTER    X. 

OF  THE   COMPLAINT    AND    THE   OFFICERS  AU 
THORIZED  TO  HEAE  IT. 

92.  SEC.  101.  The  complaint  is  the  allegation  made  to  a  magistrate  that 
a  person  has  been  guilty  of  some  designated  offense. 

93.  SEC.  102.  A  magistrate  is  an  officer  having  power  to  issue  a  warrant 
for  the  arrest  of  a  person  charged  with  a  public  offense. 

94.  SEC.  103.  The  following  persons  are  magistrates:   1st.   The  justices 
of  the  supreme  court;  2d.  The  district  judges ;  3d.  The  county  judges;  4th. 
Justices  of  the  peace;  5th.  The  recorders  of  cities;  and  6th.  The  mayors  of 
cities,  upon  whom  are  conferred  by  law  the  power  of  justices  of  the  peace. 


CHAPTER   XI. 
WARRANT    OF    ARREST. 

95.  SEC.  104.  When  a  complaint  is  laid  before  a  magistrate  of  the  com 
mission  of  a  public  offense  triable  within  the  county,  he  must  examine  on 
oath  the  complainant  or  prosecutor,  and  any  witnesses  he  may  produce,  and 
take  their  depositions  in  writing  and  cause  them  to  be  subscribed  by  the 
parties  making  them. 

96.  In  the  absence  of  proof,  the  presumption  of  law  is 
that  a  justice,  when  acting  as  an  examining  magistrate,  has 
not  transcended  his  jurisdiction.     1  Parker,  G.  E.  567. 

97.  The  depositions  of  witnesses  taken  before  a  magis 
trate  upon  a  criminal  charge  may  be  used  before  a  grand 
jury.     4  Gal.  225. 

98.  A  deposition  taken  before  an  examining  magistrate, 
on  the  preliminary  examination  of  a  person  charged  with 
the  commission  of  a  felony,  is  not  admissible  on  his  trial ; 
First,  because  the  magistrate  is  not  authorized  or  required 
to  take  it;  and  secondly,  because  taken  before  the  defendant 
was  held  to  answer.     6  Gal.  204,  205. 

99.  «SEC.  105.  The  deposition  must  set  forth  the  facts  stated  by  the  prose 
cutor  and  his  witnesses,  tending  to  establish  the  commission  of  the  offense 
and  the  guilt  of  the  defendant. 

100.  An  affidavit  in  pursuance  of  which  the  warrant  was 
issued  is  of  but  little  value,  if  it  is  upon  information  mere 
ly.  An  affidavit  which  states  no  fact  within  the  knowledge 


WARRANT   OF  AEREST.  785 

of  the  person  making  it  can  be  of  little  weight  in  any  legal 
proceeding.  An  affidavit  which  sets  forth  in  positive  terms 
as  within  the  knowledge  of  the  deponent  the  commission  of 
the  offenses  charged  therein,  and  proceeds  upon  information 
as  to  the  names  only  of  the  persons  who  were  guilty  of  the 
perpetration  of  them,  is  not  an  affidavit  upon  information 
merely.  The  preliminary  evidence  upon  an  application  for 
a  warrant  of  arrest  may  be  either  by  the  affidavit  of  some 
person  cognizant  of  the  facts,  or  by  his  examination  under 
oath  taken  by  the  officer,  and  is  for  the  purpose  of  satisfy 
ing  the  person  to  whom  the  application  is  made  that  there 
is  reason  to  believe  that  a  felony  or  other  crime  has  been 
actiially  committed,  without  which  no  warrant  should  issue ; 
as  also  to  prove  the  cause  and  probability  of  suspecting  the 
party  against  whom  the  warrant  is  prayed.  1  Col.  11. 

101.  A  positive  charge  on  oath,  according  to  the  best 
knowledge  and  belief  of  a  party  making  a  complaint  before 
a  justice,  is  sufficient  to  justify  the  issuing  of  the  magis 
trate's  warrant.     39  Maine  (4  Heath)  212. 

102.  In  a  complaint  against  one  before  a  justice  of  the 
peace  for  a  larceny  not  triable   by  such  magistrate,  but 
brought  before   him   to  have  the   offender  committed  or 
recognized  to  take  his  trial  at  the  proper  tribunal,  the  of 
fense   should  be  stated  on  oath,  in  substance,  and  clearly; 
but  the  same  technical  precision  and  accuracy  are  not  re 
quired  as  in  an  indictment.     1  Fairf.  473. 

103.  In  proceedings  had  before  a  justice  preliminary  to 
the  issue  of  a  warrant  for  a  public  offense,  technical  accu 
racy  is  not  required ;    it  is   sufficient,  if    giving  to    the 
language  employed  its  usual  and  ordinary  signification,  it 
shows  that  an  offense  against  criminal  law  has  been  com 
mitted.     25  Ala.  221. 

104.  SKC.  106.  If  the  magistrate  be  satisfied  therefrom  that  the  offense 
complained  of  has  been  committed,  and  that  there  is  reasonable  ground  to 
believe  that  the  defendant  has  committed  it,  he  shall  issue  a  warrant  of 
arrest. 

105.     From  the  preceding  statute  and  the  decision  of 

the  courts  in  reference  to  warrants  of  arrest,  the  duty  of  a 

magistrate  is  plainly  deducible.     He  must  either  know  that 

an  offense  against  the  laws  has  been  committed,  or  he  must 

99 


786  JUSTICES'  TREATISE. 

be  satisfied  of  the  fact  by  a  degree  of  proof  which  will  re 
move  a  "reasonable  doubt."  If  he  has  no  personal  knowl 
edge  respecting  it,  as  when  a  crime  is  committed  in  his 
presence,  he  must  require  such  evidence  as  will  convince 
him  to  a  moral  certainty  that  such  is  a  fact;  nor  should  the 
guilt  of  the  accused  be  less  satisfactorily  shown  to  justify 
his  arrest.  Personal  character  and  personal  liberty  should 
not  be  invaded  upon  a  mere  conjecture  of  guilt,  or  upon 
evidence  so  slight  as  to  leave  the  mind  in  a  condition  of 
"reasonable  doubt."  He  who  communicates  the  knowl 
edge  of  a  fact  to  another  must  himself  possess  that  knowl 
edge,  or  he  must  possess  a  knowledge  of  circumstances 
and  facts  which  he  is  able  to  communicate  and  which  the 
magistrate  should  require  him  to  state  on  his  oath,  either 
in  the  form  of  an  affidavit  or  deposition;  and  from  the 
circumstances  and  facts  so  stated,  the  magistrate  can  sel 
dom  fail  to  judge  correctly  as  to  his  duty. 

106.  SEC.  107.  A  warrant  of  arrest  is  an  order  in  writing,  in  the  name  of 
the  people,  signed  by  a  magistrate,  commanding  the  arrest  of  the  defendant, 
and  may  be  substantially  in  the  following  form : 

County  of 

The  people  of  the  State  of  California  to  any  sheriff,  constable,  marshal,  po 
liceman  in  this  state,  or  the  county  of : 

A  complaint  upon  oath  having  been  this  day  laid  before  me,  by  .  , .  . ,  that 

the  crime  of  [designate  it]  has  been  committed,  and  accusing thereof, 

you  are  therefore  commanded  forthwith  to  arrest  the  above-named and 

bring  him  before  me  at  [naming  the  place],  or  in  case  of  my  absence  or  in 
ability  to  act,  before  the  nearest  and  most  accessible  magistrate  in  this 
county. 

Dated ,  this day  of ,  18. . 


Justice  of township. 

107.  The  warrant  of  a  police  magistrate  must  show  a 
legal  authority  to  commit,  or  it  is  no  justification  of  the 
officer  who  executes  it.     37  Maine  (2  Heath)  130.     A  war 
rant  issued   by  a  magistrate,  founded  on   a  statute,  must 
show  upon  its  face  a  compliance  with  the  prerequisites  of 
the  statute.     2  Maine  ("Heath)  228. 

108.  Every  justice  of  the  peace  in  a  county  is  a  commit- 
ing  magistrate;  and  though  as  a  general  rule,  parties  ar 
rested  should  be  taken  for  examination  before  the  justice 
who  issued  the  warrant;  yet  in  case  of  his  absence  or  in- 


WAKKAJST   OF   AKKE8T.  787 

ability  to  act,  the  accused  may  be  taken  before  another 
magistrate,  and  this  instruction  should  be  inserted  in  every 
warrant  of  arrest.  19  Col.  139  (see  Pr.  Act  120  Post.) 

109.  SEC.  108.  The  warrant  must  specify  the  name  of  the  defendant,  or, 
if  it  be  unknown  to  the  magistrate,  the  defendant  may  be  designated  therein 
by  any  name.     It  must  also  state  the  time  of  issuing  it,  and  the  county, 
city  or  town  where  it  is  issued,  and  be  signed  by  the  magistrate  with  his 
name  of  office. 

110.  SEC.  109.  The  warrant  must  be  directed  to  and  executed  by  a  peace- 
officer. 

111.  SEC.  110.  Peace-officers  are  sheriffs  of  counties;  and  constables, 
marshals,  and  policemen  of  cities  and  towns  respectively. 

112.  SEC.  111.  If  a  warrant  be  issued  by  a  justice  of  the  supreme  court, 
district  judge,  or  county  judge,  it  may  be  directed  generally  to  any  sheriff, 
constable,  marshal,  or  policeman  in  this  state,  and  may  be  executed  by  any 
of  those  officers  to  whom  it  may  be  delivered. 

113.  SEC.  112.  If  it  be  issued  by  any  other  magistrate,  it  may  be  directed 
generally  to  any  sheriff,  constable,  marshal,  or  policeman  in  the  county  in 
which  it  is  issued,  and  may  be  executed  in  that  county,  or  if  the  defendant 
be  in  another  county  it  may  be  executed  therein  upon  the  written  direction 
of  a  magistrate  of  that  county,  indorsed  upon  the  warrant  signed  by  him, 
with  his  name  of  office,  and  dated  at  the  county,  city  or  town  where  it  is 
made,  to  the  following  effect :  This  warrant  may  be  executed  in  the  county  of 
....  [or,  as  the  case  may  be]. 

114.  SEC.  113.  The  indorsement  mentioned  in  the  last  section  shall  not 
however  be  made,  unless  the  warrant  be  accompanied  with  a  certificate  of 
the  county  clerk  under  the  seal  of  this  court  as  to  the  official  character  of 
the  magistrate,  or  unless  upon  the  oath  of  a  credible  witness  in  writing, 
indorsed  on  or  annexed  to  the  warrant,  proving  the  handwriting  of  the 
magistrate  by  whom  it  was  issued.     Upon  such  proof,  the  magistrate  indors 
ing  the  warrant  shall  be  exempted  from  the  liability  to  a  civil  or  criminal 
action,  though  it  afterwards  appear  that  the  warrant  was  illegally  or  improp 
erly  issued. 

115.  SEC.  114.  If  the  offense  charged  in  the  warrant  be  a  felony,  the 
officer  making  the  arrest  must  take  the  defendant  before  the  magistrate  who 
issued  the  warrant,  or  some  other  magistrate  of  the  same  county,  as  pro 
vided  in  section  one  hundred  and  eighteen. 

116.  SEC.  115.     If  the  offense  charged  in  the  warrant  be  a  misdemeanor, 
and  the  defendant  be  arrested  in  another  county,  the  officer  must,  upon 
being  so  required  by  the  defendant,  bring  him  before  a  magistrate  of  such 
county,  who  shall  admit  the  defendant  to  bail. 

117.  SEC.  116.  On  admitting  the  defendant  to  bail  the  magistrate  shall 
certify  on  the  wan-ant  the  fact  of  his  having  done  so,  and  deliver  the  warrant 
and  recognizance  to  the  officer  having  charge  of  the  defendant.    The  officer 
shall  forthwith  discharge  the  defendant  from  arrest,  and  shall  without  delay 
deliver  the  warrant  and  recognizance  to  the  clerk  of  the  court  at  which  the 
defendant  is  required  to  appear. 

118.  SEC.  117.  If  on  the  admission  of  the  defendant  to  bail,  as  provided 
in  section  one  hundred  and  fifteen,  or  if  bail  be  not  forthwith  given,  the 


788  JUSTICES'  TREATISE. 

officer  shall  take  the  defendant  before  the  magistrate  who  issued  the  war 
rant  or  some  other  magistrate  of  the  same  county,  as  provided  by  the  next 
section. 

119.  SEC.  118.  When  by  the  preceding  sections  of  this  chapter  the  de 
fendant  is  required  to  be  taken  before  the  magistrate  who  issued  the  war 
rant,  he  may,  if  the  magistrate  be  absent  or  unable  to  act,  be  taken  before 
the  nearest  or  most  accessible  magistrate  in  the  same  county.     The  officer 
shall,  at  the  same  time,  deliver  to  the  magistrate  the  warrant  with  his  return, 
indorsed  and  subscribed  by  him. 

120.  SEC.  119.  The  defendant  must  in  all  cases  be  taken   before   the 
magistrate  without  unnecessary  delay. 

121.  SEC.  120.  If  the  defendant  be  brought  before  a  magistrate  in  the 
same  county  other  than  the  one  who  issued  the  warrant,  the  affidavits  on 
which  the  warrant  was  granted,  if  the  defendant  insist  upon  an  examination, 
shall  be  sent  to  such  magistrate,  or  if  they  cannot  be  procured,  the  prosecu 
tor  and  his  witnesses  shall  be  summoned  to  give  their  testimony  anew. 

122.  SEC.  121.     When  a  complaint  is  laid  before  a  magistrate  of  the 
commission  of  a  public  offense,  triable  within  some  other  county  of  this 
state,  but  showing  that  the  defendant  is  in  the  county  where  the  complaint 
is  laid,  the  same  proceedings  shall  be  had  as  prescribed  in  this  chapter, 
except  that  the  warrant  shall  require  the  defendant  to  be  taken  before  the 
nearest  or  most  accessible  magistrate  of  the  county  in  which  the  offense  is 
triable,  and  the  depositions  of  the  complainant  or  prosecutor,  and  of  the 
witnesses  who  may  have  been  produced,  shall  be  delivered  by  the  magistrate 
to  the  officer  to  whom  the  warrant  is  delivered. 

123.  SEC.  122.  The  officer  who  executes  the  warrant  shall  take  the  de 
fendant  before  the  nearest  or  most  accessible  magistrate  of  the  county  in 
which  the  offense  is  triable,  and  shall  deliver  to  such  magistrate  the  deposi 
tions  and  the  warrant  with  his  return  indorsed  thereon,  and  such  magistrate 
shall  proceed  in  the  same  manner  as  upon  a  warrant  issued  by  himself. 

124.  SEC.  123.  If  the  offense  charged  in  the  warrant  issued  pursuant  to 
section  one  hundred  and  twenty-one  be  a  misdemeanor,  the  officer  shall, 
upon  being  so  required  by  the  defendant,  take  him  before  a  magistrate  of 
the  county  in  which  the  said  warrant  is  issued,  who  shall  hold  the  defendant 
to  bail,   and  immediately  transmit  the  warrant,    depositions,   and  recog 
nizance,  to  the  clerk  of  the  court  in  which  the  defendant  is  required  to 
appear. 


CHAPTER   XII. 
ABBEST  BY  AN  OFFICEB  UNDEB  WABBANT. 

125.  SEC.  124.  Arrest  is  the  taking  of  a  person  into  custody  that  he  may 
be  held  to  answer  for  a  public  offense. 

126.  SEC.  125.  An  arrest  may  be  either:    1st,  by  a  peace-officer  under  a 
warrant;   2d,  by  a  peace-officer  without  a  warrant;  or,  3d,  by  a  private  per 
son. 

127.  SEC.  126.  Every  person  shall  aid  an  officer  in  the  execution  of  a 
warrant,  if  the  officer  require  his  aid,  and  be  present  and  acting  in  its  execu 
tion. 


ARREST  BY  AN   OFFICER   WITHOUT   A   WARRANT.  789 

128.  SEC.  127.  If   the  offense  charged  be  a  felony,  the   arrest  may  be 
made  on  any  day  and  a.  any  time  of  the  day  or  night.     If  it  be  a  misde 
meanor,  the  [arrest  shall  not  be  made  at  night  unless  upon  the  direction  of 
the  magistrate  indorsed  upon  the  warrant. 

129.  SEC.  128.  An  arrest  shall  be  made  by  an  actual  restraint  of  the  per 
son  of  the  defendant,  or  by  his  submission  to  the  custody  of  an  officer. 

130.  SEC.  129.  The  defendant  shall  not  be  subjected  to  any  more  re 
straint  than  is  necessary  for  his  arrest  and  detention. 

131.  SEC.  130.  The  officer  shall  inform  the  defendant  that  he  acts  under 
the  authority  of  the  warrant,'  and  shall  also  show  the  warrant  if  required. 

132.  SEC.  131.  If  after  notice  of  intention  to  arrest  the  defendant,  he 
either  flee  or  forcibly  resist,  the  officer  may  use  all  necessary  means  to  effect 
the  arrest. 

133.  SEC.  132.     The  officer  may  break  open  any  outer  or  inner  door  or 
window  of  a  dwelling-house  to  execute  the  warrant,  if,  after  notice  of  his 
authority  and  purpose,  he  be  refused  admittance. 

134.  SEC.  133.  An  officer  may  break  open  any  outer  or  inner  door  or 
window  of  a  dwelling-house,  for  the  purpose  of  liberating  a  person  who, 
having  entered  for  the  purpose  of  making  an  arrest,  is  detained  therein,  or 
when  necessary  for  his  own  liberation. 


CHAPTER   XIII. 
AEEEST  BY  AN  OFFICER  WITHOUT  A  WARRANT. 

135.  SEC.  134.  A  peace-officer  may,  without  a  warrant,  arrest  a  person: 
1st,    For  a   public  offense  committed   or  attempted  in  his  presence;    2d, 
when  a  person  arrested  has  committed  a  felony,  although  not  in  his  pres 
ence;  3d,  when  a  felony  has  in*fact  been  committed,  and  he  has  reasonable 
cause  for  believing  the  person  arrested  to  have  committed  it;    4th,  on  a 
charge  made  upon  a  reasonable  cause  of  the  commission  of  a  felony  by  the 
party  arrested. 

136.  SEC.  135.  To  make  an  arrest  as  provided  in  the  last  section,  the 
officer  may  break  open  any  outer  or  inner  door  or  window  of  a  dwelling- 
house  if,  after  notice  of  his  office  and  purpose,  he  be  refused  admittance. 

137.  SEC.  136.  He  may  also  at  night,  without  a  warrant,  arrest  any  per 
son  whom  he  has  reasonable  cause  for  believing  to  have  committed  a  felony, 
and  is  justified  in  making  the  arrest,  though  it  afterwards  appear  that  a 
felony  had  not  been  committed. 

138.  SEC.  137.  When  arresting  a  person  without  a  warrant  the  officer 
must  inform  him  of  his  authority,  and  the  cause  of  the  arrest,  except  when 
he  is  in  the  actual  commission  of  a  public  offense   or  when  he  is  pursued 
immediately  after  an  escape. 

139.  SEC.  138.  He  may  take  before  a  magistrate  any  person  who,  being 
engaged  in  a  breach  of  the  peace,  is  arrested  by  a  bystander  and  delivered 
to  him. 

140.  SEC.  139.  When  a  public  offense  is  committed  in  the  presence  of  a 
magistrate  he  may,  by  a  verbal  order,  command  any  person   to   arrest  the 
offender,  and  may  thereupon  proceed  a3  if  the  offender  had  been   brought 
before  him  on  a  warrant  of  arrest. 


790  JUSTICES'  TREATISE. 

CHAPTER   XIV. 
ARREST  BY  A  PEIVATE  PERSON. 

141.  SEC.  140.   A  private  person  may  arrest  another:    1st,  for  a  public 
offense  committed  or  attempted  in  his  presence;  2d,  when  the  person  ar 
rested  has  committed  a  felony,  although  not  in  his  presence:   3d,  when  a 
felony  has  been  in  fact  committed,  and  he  has  reasonable  cause  for  believing 
the  person  arrested  to  have  committed  it. 

142.  SEC.  141.  He  must  before  making  the  arrest  inform  the  person  to 
be  arrested  of  the  cause  thereof  and  require  him  to  submit,  except  when  he 
is  in  the  actual  commission  of  the  offense,  or  when  he  is  arrested  on  pursuit 
immediately  after  its  commission. 

143.  SEC.  14S.  If  the  person  to  be  arrested  have  committed  a  felony,  and 
a  private  person,  after  notice  of  his  intention  to  make  the  arrest,  be  refused 
admittance,  he  may  break   open  any  outer  or  inner  door  or  window  of  a 
dwelling-house  for  the  purpose  of  making  the  arrest. 

144.  SEC.  143.  A  private  person  who  has  arrested  another  for  the  com 
mission  of  a  public  offense  must  without  unnecessary  delay  take  him  be 
fore  a  magistrate,  or  deliver  him  to  a  peace-officer. 


CHAPTER   XV. 

RETAKING  AFTER  AN  ESCAPE  OR  RESCUE. 

145.  SEC.  144.  If  a  person  arrested  escape  or  be  rescued,  the  person 
from  whose  custody  he  escaped  or  was  rescued,  may  immediately  pursue 
and  retake  him  at  any  time  and  at  any  place  within  the  state. 

146.  SEC.  145.  To  retake  the  person  escaping  or  rescued,  the  person 
pursuing  may,  after  notice  of  his  intention  and  refusal  of  admittance,  break 
open  any  outer  or  inner  door  or  window  of  a  dwelling  house. 


CHAPTER    XVI. 

EXAMINATION  OF   THE   CASE  AND  DISCHARGE 

OF  THE  DEFENDANT,  OR  HOLDING  HIM 

TO  ANSWER. 

147.  SEC.  146.  When  the  defendant  is  brought  before  the  magistrate 
upon  an  arrest,  either  with  or  without  warrant,  on  a  charge  of  having  com 
mitted  a  public  offense,  the  magistrate  shall  immediately  inform  him  of  the 
charge  against  him,  and  of  his  right  to  the  aid  of  counsel  in  every  stage  of 
the  proceedings,  and  before  any  further  proceedings  are  had. 

148.  SEC.  147.  He  shall  also  allow  the  defendant  a  reasonable  time  to 


HOLDING  DEFENDANT  TO  ANSWER.          791 

send  for  counsel,  and  adjourn  the  examination  for  that  purpose,  and  shall, 
upon  the  request  of  the  defendant,  require  a  peace-officer  to  take  a  message 
to  such  counsel  within  the  township  or  city  as  the  defendant  may  name. 
The  officers  shall,  without  delay  and  without  fee,  perform  that  duty. 

149.  SEC.  148.  The  magistrate  shall  immediately  after  the  appearance  of 
counsel,  or  if  defendant  reqiiire  the  aid  of  counsel  after  waiting  a  reasonable 
time  therefor,  proceed  to  examine  the  case. 

150.  The  absence  of  counsel  for  the  defense,  on  account 
of  sickness,  is  a  sufficient  ground  of  continuance  in  a  crim 
inal  case.     4  Cal.  188. 

151.  SEC.  149.  The  examination  imist  be  completed  at  one  session  unless 
the  magistrate  for  good  cause  shown  adjourn  it.     The  adjournment  cannot 
be  for  more  than  two  days  at  each  time,  nor  more  than  six  days  in  all,  un 
less  by  consent  or  on  motion  of  the  defendant. 

152.  SEC.  150.  If  an  adjournment  be  had  for  any  cause  the  magistrate 
shall  commit  the  defendant  for  examination,  admit  him  to  bail  or  discharge 
him  from  custody  upon  the  deposit  of  money  as  provided  in  this  act,  as 
security  for  his  appearance  at  the  time  to  which  the  examination  is  ad 
journed. 

153.  A  justice  of  the  peace  has  authority  to  adjourn,  at 
his  discretion,  an  examination  of  a  person  arrested  for  a 
bailable  offense  and  brought  before  him,  and  may  take  a 
recognizance  with  sufficient  sureties  from  the  prisoner  for 
his  appearance.     4  Day,  98. 

154.  SEC.  151.  The  commitment  for  examination  shall  be  by  an  indorse 
ment  signed  by  the  magistrate  on  the  warrant  of  arrest  to  the  following 

effect :  ' '  The  within-named ,  having  been  brought  before  me  under 

this  warrant,  is  committed  for  examination  to  the  sheriff  of  . . . ."     If  the 
sheriff  be  not  present,  the  defendant  may  be  committed  to  the  custody  of  a 
peace-officer. 

155.  SEC.  152.  At  the  examination  the  magistrate  shall  in  the  first  place 
read  to  the  defendant  the  depositions  of  the  witnesses  examined  on  the 
taking  of  the.  information.     He  shall  also  issue  subpenas  for  any  witnesses 
required  by  the  prosecutor  or  the  defendant,  as  provided  in  section  five 
hundred  and  forty-eight. 

156.  SEC.  153.  The  witnesses  shall  be  examined  in  the  presence  of  the 
defendant,  and  may  be  cross-examined  in  his  behalf. 

157.  SEC.  154.  When  the  examination  of  witnesses  on  the  part  of  the 
people  is  closed,  the  magistrate  shall  distinctly  inform  the  defendant  that  it 
is  his  right  to  make  a  statement  in  relation  to  the  charges  against  him 
(stating  the  nature  thereof),  that  the  statement  is  designed  to  enable  him, 
if  he  see  fit,  to  answer  the  charge  and  to  explain  the  fact  alleged  against 
him,  that  he  is  at  liberty  to  waive  making  a  statement,  and  that  his  waiver 
cannot  be  used  against  him  on  the  trial. 

158.  SEC.  155.  If  the  defendant  waive  his  right  to  maka  a  statement, 
the  magistrate  shall  make  a  note  thereof  immediately  following  the  deposi- 


792  JUSTICES'  TREATISE. 

tions  of  the  witnesses  against  the  defendant,  but  the  fact  of  his  waiver  shall 
not  be  used  against  the  defendant  on  the  trial. 

159.  SEC.  156.  If  the  defendant  choose  to  make  a  statement,  the  magis 
trate  shall  proceed  to  take  the  same  in  writing  without  oath,  and  shall  put 
to  the  defendant  the  following  questions  only :    ' '  What  is  your  name  and 
age?    Where  were  you  born?    Where  do  you  reside,  and  how  long  have  you 
resided  there?    What  is  your  business  or  profession?    Give  any  explanation 
you  may  think  proper  of  the  circumstances  appearing  in  the  testimony 
against  you,  and  state  any  facts  which  you  think  will  tend  to  your  exculpa 
tion." 

160.  SEC.  157.  The  answer  of  the  defendant  to  each  of  the  qiiestions 
must  be  distinctly  read  to  him  as  it  is  taken  down.     He  may  thereupon 
correct  or  add  to  his  answer,  and  it  shall  be  corrected  until  it  is  made  con 
formable  to  what  he  declares  to  be  the  truth. 

161.  SEC.  158.  The  statement  must  be  reduced  to  writing  by  the  magis 
trate  or  under  his  direction,  and  authenticated  in  the  following  form :  1st. 
It  must  set  forth  in  detail  that  the  defendant  was  informed  of  his  rights  as 
provided  by  section  one  hundred  and  fifty-four,  and  that  after  being  so  in 
formed  he  made  the  statement;  2d.  It  must  contain  the  questions  put  to 
him  and  his  answers  thereto,  as  provided  in  sections  one  hundred  and  fifty- 
seven  and  one  hundred  and  fifty-six;  3d.  It  may  be  signed  by  the  defendant 
or  he  may  refuse  to  sign  it,  but  if  he  refuse  to  sign  it  his  reason  therefor 
must  be  stated  as  he  gives  it;  4th.  It  must  be  signed  and  certified  by  the 
magistrate. 

162.  SEC.  159.  After  the  waiver  of  the  defendant  to  make  a  statement, 
or  after  he  has  made  it,  his  witnesses,  if  he  produce  any,  shall  be  sworn  and 
examined. 

163.  SEC.  160.  The  witnesses  produced  on  the  part  either  of  the  people 
or  of  the  defendant  shall  not  be  present  at  the  examination  of  the  defend 
ant,  and  while  a  witness  is  under  examination  the  magistrate  may  exclude 
all  witnesses  who  have  not  been  examined.     He  may  also  cause  the  wit 
nesses  to  be  kept  separate  and  to  be  prevented  from  conversing  with  each 
other  until  they  are  all  examined. 

164.  SEC.  161.  The  magistrate  shall  also  upon  the  request  of  the  defend 
ant  exclude  from  the  examination  every  person  except  his  clerk,  the  prose 
cutor  and  his  counsel,  the  attorney-general,  the  district  attorney  of   the 
county,  the  defendant  and  his  counsel,  and  the  officer  having  the  defendant 
in  custody. 

165.  SEC.  163.  After  hearing  the  proofs  and  the  statement  of  the  defend 
ant,  if  he  have  made  one,  if  it  appear  either  'that  a  public  offense  has  not 
been  committed,  or  there  is  no  sufficient  cause  to  believe  the  defendant 
guilty  thereof,  the  magistrate  shall  order  the  defendant  to  be  discharged  by 
an  indorsement  on  the  depositions  and  statement  signed  by  him  to  the  fol 
lowing  effect:  "  There  being  no  sufficient  cause  to  believe  the  within-named 
guilty  of  the  offense  within-mentioned,  I  order  him  to  be  discharged." 

166.  If  on  examination  of  a  charge  of  suspicion  of  felony 
or  of  having  stolen  goods,  the  magistrate  be  satisfied  that 
there  is  no  ground  for  suspicion,  he  may  dismiss  the  -per 
son  accused.     2  Johns.  203. 


HOLDING  DEFENDANT   TO   ANSWER.  793 

167.  SEC.  164.  If,  however,  it  appear  from  the  examination  that  a  public 
offense  has  been  committed,  and  there  is  siifficieut  cause  to  believe  the  de 
fendant  guilty  thereof,  the  magistrate  shall  in  like  manner  indorse  on  the 
deposition  and  statement  an  order  signed  by  him  to  the  following  effect: 
"It  appearing  to  me  by  the  within  depositions  (and  the  statement  if  any) 
that  the  offense  therein  mentioned  (or  any  other  offense  according  to  the  fact, 
stating  generally  the  nature  thereof) ,  has  been  committed,  and  that  there  is 
sufficient  cause  to  believe  the  within  A.  B.  guilty  thereof,  1  order  that  he  be 
held  to  answer  to  the  same." 

168.  On  an  examination  before  a  magistrate,  if  the  evi 
dence  satisfy  him  that  a  crime  different  from  that  charged 
has  been  perpetrated,  he  may  hold  the  accused  in  custody 
till  an  affidavit  fitting  the  case  can  be  made,  and  then  recog 
nize  him  upon  it.     4  Ind.  428. 

169.  SEC.  165.  If  the  offense  be  not  bailable,  the  following  words,  or 
words  to  the  same  effect,  shall  be  added  to  the  indorsement,  "  and  that  he  be 
committed  to  the  sheriff  of  the  county  of " 

170.  SEC.  166.  If  the  offense  be  bailable  and  the  bail  be  taken  by  the 
magistrate,  the  following  words,  or  words  to  the  same  effect,  shall  be  added 
to  the  indorsement :     "And  I  have  admitted  him  to  bail  to  answer  by  the 
recognizance  hereto  annexed." 

171.  SEC.  167.  If  the  offense  be  bailable,  and  the  defendant  be  admitted  to 
bail,  but  bail  have  not  been  taken,  the  following  words,  or  words  to  the  same 
effect,  shall  be  added  to  the  indorsement  mentioned  in  section  one  hundred 
and  sixty-four :  ' '  And  that  he  be  admitted  to  bail  in  the  sum  of  ....  dollars, 
and  be  committed  to  the  sheriff  of  the  county  of  ....  until  he  gives  such 
bail." 

172.  SEC.  168.     If  the  magistrate  order  the  defendant  to  be  committed  as 
provided  in  sections  one  hundred  and  sixty-five  and  one  hundred  and  sixty- 
seven,  he  shall  make  out  a  commitment  signed  by  him  with  his  name  of  office 
and  deliver  it,  with  the  defendant,  to  the  officer  to  whom  he  is  committed, 
or,  if  that  officer  be  not  present  to  a  peace  officer,  who  shall  deliver  the  de 
fendant  into  the  proper  custody,  together  with  the  commitment. 

173.  SEC.    169.     The    commitment    must    be    to  the  following  effect: 
"  County  of (as  the  case  may  be).     The  people  of  the  State  of  Califor 
nia  to  the  sheriff  of  the  county  of :    An  order  having  been  this  day  made 

by  me  that  A.  B.  be  held  to  answer  upon  a  charge  of  (stating  briefly  the  na 
ture  of  the  offense,  and  as  near  as  may  be  the  time  when,  and  the  place 
where  the  same  was  committed),  you  are  commanded  to  receive  him  into 
your  custody,  and  detain  him  until  he  be  legally  discharged.     Dated  this 
day  of ,  18.." 

174.  In  the  form  of  commitment  given  in  the  one  hun 
dred  and  sixty-eighth  section  of  the  practice  act  is  con 
tained  the  words:  "Stating  briefly  the  nature  of  the  of 
fense,  and  as  near  as  may  be  the  place  where  the  same  w.is 
committed."  By  the  "nature  of  the  offense,"  is  meant  its 
100 


794  JUSTICES'  TREATISE. 

classification  in  the  catalogue  of  crimes,  as  "assault,"  "as 
sault  and  battery,"  "grand  larceny,"  "petit  larceny,"  etc. 
If,  however,  the  magistrate  is  unable  to  classify  the  offense, 
it  will  be  sufficient  if  he  inserts  in  the  commitment  the  acts 
of  the  accused  as  "no  answer"  upon  a  charge  of  having 
committed'  the  offense  of  feloniously  stealing,  taking  and 
carrying  away,  leading  or  driving  away  the  personal  goods 
or  property  of  (the  owner's  name  should  be  given)  of  the 
value  of  ....  dollars.  The  time  when  the  offense  was  com 
mitted  should  be  stated,  also  the  county  in  which  it  was 
perpetrated.  If  upon  an  examination  it  should  appear  that 
the  accused  is  guilty  of  any  offense,  even  if  it  be  different 
from  the  one  specified  in  the  warrant  of  arrest,  he  should  be 
committed  for  the  offense  of  which  he  appears  to  be  guilty. 
People  vs.  Smith,  1  Cal.  9  (Ante  Pr.  Act,  164), 
175.  The  following  commitments  are  defective : 

State  of  California,  j 

City  and  county  of  Sacramento,  j 
Justice  court;  L.  H.  Foote,  a  justice  of  the  peace,  Sacramento  city. 

The  people  of  the  state  of  California  to  the  sheriff  of  the  city  and  county 
aforesaid:  An  order  having  been  this  day  made  by  me  that  Michael  Brani- 
gan  be  held  to  answer  upon  a  charge  of  grand  larceny,  you  are  therefore 
commanded  to  receive  him  into  your  custody  and  detain  him  until  he  be 
legally  discharged. 

Witness  my  hand  this  second  clay  of  Julyr^.n,  1861. 

L.  H.  FOOTE, 

Justice  of  the  peace. 
State  of  California,  ) 

City  and  county  of  Sacramento.  \ 

Justice  court;  L.  H.  Foote,  a  justice  of  the  peace,  Sacramento  city. 

The  people  of  the  state  of  California  to  the  sheriff  of  the  city  and  county 
aforesaid :  An  order  having  been  made  by  me  that  Mike  Branigan  be  held  to 
answer  upon  a  charge  of  rape,  you  are  therefore  commanded  to  receive  him 
into  your  custody  and  detain  him  until  legally  discharged. 
Witness  my  hand  this  second  day  of  July,  A.D.  1861. 

L.  H.  FOOTS, 

Justice  of  the  peace. 

These  commitments  do  not  state  the  offenses  charged 
against  the  prisoner  with  sufficient  particularity.  The  first 
does  not  state  of  what  property  the  larceny  alleged  was  com 
mitted,  or  to  whom  the  property  belonged,  or  its  value,  or 
the  time  when  or  the  place  where  the  offense  was  committed. 
For  the  omission  in  these  particulars  the  commitment  is 
fatally  defective.  The  second  commitment  does  not  state 


HOLDING  DEFENDANT  TO  ANSWEK.          795 

the  person  upon  whom  the  alleged  rape  was  committed  or 
the  use  of  violence,  which  is  an  essential  ingredient  in  the 
offense,  or  the  time  when  or  the  place  where  the  offense  was 
committed.  It  is  therefore  equally  defective  with  the  first. 
The  commitment  must  not  only  state  the  offense  charged, 
but  such  facts  as  are  essential  to  constitute  the  offense 
against  the  prisoner.  Such  was  the  rule  of  the  common 
law  according  to  the  most  approved  authorities,  and  such 
is  the  requirement  of  the  statute  in  this  state.  The  statute 
provides  that  the  commitment  shall  state  "  briefly  the  na 
ture  of  the  offense,  and  as  near  as  may  be  the  time  when 
and  the  place  where  the  same  was  committed;"  and  gives 
the  form  of  a  commitment  which  can  be  readily  followed  by 
magistrates.  There  is  no  excuse  for  the  issuance  of  process 
so  defective  as  the  commitments  under  consideration.  19 
Cal.  135. 

176.  SEC.  170.  On  holding  the  defendant  to  answer,  the  magistrate  shall 
take  from  each  of  the  material  witnesses  examined  before  him  on  the  part  of 
the  people  a  written  recognizance  to  the  effect  that  he  will  appear  and  testify 
at  the  court  to  which  the  depositions  and  statements  are  to  be  sent,  or  that 
he  will  forfeit  the  sum  of  five  hundred  dollars. 

177.  SEC.  171.   At  any  time  before  or  after  the  defendant  has  been  held 
to  answer,  if  the  magistrate  or  the  district  or  county  judge  before  whom  the 
case  may  be  pending  should  become  satisfied,  by  proof  on  oath,  that  there  is 
reason  to  believe  that  any  such  witness  will  not  fulfill  his  recognizances  to 
appear  and  testify  unless  security  be  required,  said  magistrate  or  judge  may 
order  the  witness  to  enter  into  a  written  recognizance,  with  such  sureties  and 
in  such  sum  as  he  may  deem  meet,  for  his  appearance  as  specified  in  the  last 
section. 

178.  SEC.  172.  Infants  and  married  women,  who  are  material  witnesses 
against  the  defendant,  may  in  like  manner  be  required  to  procure  sureties 
for  their  appearance,  as  provided  in  the  last  section. 

179.  SEC.  173.  If  a  witness  required  to  enter  into  recognizance  to  appear 
and  testify  either  with  or  without  sureties  refuse  compliance  with  the  order 
for  that  purpose,  the  magistrate  shall  commit  him  to  prison  until  he  comply 
or  be  legally  discharged. 

180.  SEC.  174.  When,  however,  it  shall  satisfactorily  appear  by  examina 
tion  on  oath  of  the  witness  or  any  other  person,  that  the  witness  is  unable  to 
procure  sureties,  he  may  be  forthwith  conditionally  examined  on  behalf  of 
the  people ;  such  examination  shall  be  by  question  and  answer,  and  shall  be 
conducted   in  the  same  manner  as  the  examination  before  a  committing 
magistrate  is  required  by  this  act  to  be  conducted,  and  the  witness  shall 
thereupon  be  discharged. 

181.  SEC.  175.  The  last  section  shall  not  apply  to  the  prosecutor  or  to 
an  accomplice  in  the  commission  of  the  offense  charged. 

182.  SEC.  176.  When  a  magistrate  has  discharged  a  defendant,  or  has 


796  JUSTICES'  TREATISE. 

held  him  to  answer  as  provided  in  sections  one  hundred  and  sixty-four  and 
one  hundred  and  sixty-five,  he  shall  return  without  delay  to  the  clerk  of  the 
court  at  which  the  defendant  is  required  to  appear,  the  warrant  if  any,  th 
depositions,  the  statement  of  the  defendant,  if  he  have  made  one,  and  all 
recognizance  of  bail  or  for  the  appearance  of  witnesses  taken  by  him. 


CHAPTER   XVII. 

OF  PKOCEEDINGS  AFTER  COMMITMENT  AND  BE 
FORE  INDICTMENT. 

183.  All  public  offenses  triable  in  the  district  court  and 
county  court  must  be  prosecuted  by  indictment,  except  as 
provided  in  the  next  section. 

184.  SEC.  178.  "When  the  proceedings  are  had  for  the  removal  of  district} 
County  or  township   officers,  they  may  be   commenced  by  an   accusation  in 
waiting,  as  provided  in  sections  seventy  and  eighty-three. 

185.  SEC.  179.   All  accusations  against  district,  county  and  township 
officers,  and  all  indictments,  must  be  found  in  the  county  court. 


CHAPTER    XVIII. 
POWERS  AND  DUTIES  OF  A  GRAND  JURY. 

186.  From  the  laws  concerning  the  "powers  and  duties 
of  a  grand  jury"  the  following  sections  are  selected,  be 
cause  they  alone  can  be  construed  as,  by  possibility,  creat-' 
ing  a  case  within  the  jurisdiction  of  justices  of  the  peace. 
A  grand  jury  may  present  to  the  court  an  offense  triable  by 
a  justice,  and  a  member  of  a  grand  jury  may  be  called  into 
a  justice's  court  to  disclose  testimony  given  by  a  witness 
before  them. 

187.  SEC.  207.  A  presentment  is  an  informal  statement  in  writing  by 
the  grand  jury,  representing  to  the  court  that  a  public  offense  has  been  com 
mitted  which  is  triable  within  the   county,  and  that  there  is  reasonable 
ground  for .  believing  that  a  particular  individual  named  or  described  has 
committed  it. 

188.  SEC.  218.  A  member  of  the  grand  jury  may,  however,  be  required 
by  any  court  to   disclose  the  testimony  of   a  witness  examined  before  the 
grand  jury,  for   the  purpose  of   ascertaining  whether  it  is  consistent  with 
that  given  by  the   witness  before  the  court,  or   to  disclose  the  testimony 
given  before  them  by  any  person,  upon  a  charge  against  him  for  perjury  in 
giving  his  testimony  or  upon  his  trial  therefor. 


PRESENTMENT  AND  PROCEEDINGS  THEREON.       797 

189.  SEC.  219.  No  grand  juror  shall  be  questioned  for  anything  he  may 
say  or  any  vote  he  may  give  in  the  grand  jury  relative  to  a  matter  legally 
pending  before  the  jury,  except  for  a  perjury  of  which  he  may  have  been 
guilty  in  making  an  accusation  or  giving  testimony  to  his  fellow-jurors. 


CHAPTER   XIX. 
PRESENTMENT  AND  PROCEEDINGS  THEREON. 

190.  SEC.  222.  No  grand  juror,  district  attorney,  clerk,  judge  or  other 
officer,  shall   disclose  the   fact  of  a  presentment  having  been  made  for  a 
felony  until  the  defendant  shall  have  been  arrested.     But  this  prohibition 
shall  not  extend  to  disclosure  by  the  issuing  or  in  the  execution  of  a  warrant 
to  arrest  the  defendant. 

191.  SEC.  223.  A  violation  of  the  provisions  of  the  last  section  shall  be 
punished  as  a  contempt  and  as  a  misdemeanor. 

192.  SEC.  224.  If  the  court  deem  that  the  facts  stated  in  the  presentmen 
constitute  a  public  offense,  triable  within  the  county,  it  shall  direct  the  clerk 
to  issue  a  bench  warrant  for  the  arrest  of  the  defendant. 

193.  SEC.  225.  -The  clerk,  on  the  application   of  the  district  attorney, 
may  accordingly,  at  any  time  after  the  order,  whether  the  court  be  sitting  or 
not,  issue  a  bench  warrant  under  his  signature  and  the  seal  of  the  court 
into  one  or  inore  counties. 

194.  SEC.  226.  The  bench  warrant  upon  presentment  shall  be  substan 
tially  in  the  following  form : 

County  of The  people  of  the  State  of  California,  to  any  sheriff, 

constable,  marshal  or  policeman,  in  this  state : 

A  presentment  having  been  made  on  the  ....  day  of  . .  . ,  18 . . ,  to 
the  county  court  of  the  county  of  . . . . ,  charging  ....  with  the  crime  of 
....  [designating  it  generally];  you  are  therefore  commanded  forthwith  to 

arrest  the  above-named ,  and  take  him  before ,  a  magistrate  of  this 

county;  or,  in  case  of  his  absence  or  inability  to  act,  before  the  nearest  or 
most  accessible  magistrate  in  this  county. 

Given  under  my  hand,  with  the  seal  of  said  court  affixed,  this   ....  day  of 

,  A.D.  18.. 

By  order  of  said  court, 

[L.S.]  ,  clerk. 

195.  SEC.  227.  The  bench  warrant  may  be  served  in  any  county,  and  the 
officer  serving  it  shall  proceed  thereon  in  all  respects  as  upon  a  warrant  of 
arrest  on  a  complaint,  except  that  when  served  in  another  county  it  need 
not  be  indorsed  by  a  magistrate  of  that  county. 

196.  SEC.  228.  The  magistrate,  when  the  defendant  is  brought   before 
him  shall  proceed  to  examine  the  charges  contained  in  the  presentment,  and 
hold  the  defendant  to  answar  the  same  or  discharge  him  therefrom,  in  the 
same  manner  in  all  respects  as  upon  a  warrant  of  arrest  on  complaint. 


798  JUSTICES'  TREATISE. 

CHAPTER   XX. 
FOBM    OF    INDICTMENT. 

The  selection  of  the  following  sections  have  been  made, 
because  by  using  the  word  "complaint"  wherever  the 
word  "indictment"  occurs,  it  will  be  seen  that  they  are 
applicable  to  justices'  courts. 

197.  SEC.  254.  Upon  an  indictment  against  several  defendants,  any  one 
or  more  may  be  convicted  or  acquitted. 

198.  SEC.  255.  No  distinction  shall  exist  between  an  accessory  before 
the  fact  and  a  principal,  or  between  principals  in  the  first  and  second  de 
grees  in  cases  of  felony,  and  all  persons  concerned  in  the  commission  of  a 
felony,  whether  they  directly  commit  the  act  constituting  the  offense  or  aid 
and  abet  in  its  commission,  though  not  present,  shall  hereafter  be  indicted, 
tried  and  punished  as  principals. 

199.  SEC.  256.  An  accessory  after  the  fact  to  a  commission  of  a  felony, 
may  be  indicted  and  punished,  though  the  principal  felon  may  be  neither 
tried  nor  indicted. 

200.  SEC.  257.  A  person  may  be  indicted  for  having,  with  the  knowledge 
of  the  commission  of  a  public  offense,  taken  money  or   property  of  another 
or  a  gratuity  or  a  reward  or  an  agreement  or  understanding  express  or  im 
plied  to  compound  or  conceal  the  offense,  or  to  abstain  from  a  prosecution 
therefor  or  to  withhold  any  evidence  thereof,  though  the  persons  guilty  of 
the  original  offense  have  not  been  indicted  or  tried. 


CHAPTER   XXI. 
CHALLENGING    THE    JUKY. 

201.  SEC.  326.  A  challenge  is  an  objection  made  to  the  trial  jurors,  and 
is  of  two  kinds :    1st.  To  the  panel ;  2d.  To  an  individual  juror. 

202.  SEC.  327.  When  several  defendants  are  tried  together,  they  are  not 
allowed  to  sever  their  challenges,  but  must  join  therein. 

203.  SEC.  328.  The  panel  is  a  list  of  jurors  returned  by  a  sheriff  to  serve 
at  a  particular  court  or  for  the  trial  of  a  particiilar  cause. 

204.  SEC.  329.  A  challenge  to  the  panel  is  an  objection  made  to  all  the 
jurors  returned,  and  may  be  taken  by  either  party. 

205.  SEC.  330.  A  challenge  to  the  panel  can  only  be  founded  on  a  mate 
rial  departure  from  the  forms  prescribed  by  statute  in  respect  to  the  drawing 
and  return  of  the  jury,  or  an  intentional  omission  of  the  sheriff  to  summon 
one  or  more  of  the  jurors  drawn. 

206.  SEC.  331.  A  challenge  to  a  panel  must  be  taken  before  a  juror  is 
sworn,  and  must  be  in  writing,   specifying  plainly  and  distinctly  the  facts 
constituting  the  grounds  of  challenge. 

207.  SEC.  332.  If  the  sufficiency  of  the  facts  alleged  as  a  ground  of  chal- 


CHALLENGING  THE  JURY.  799 

lenge  be  determined,  the  adverse  party  may  except  to  the  challenge.  The 
exception  need  not  be  ir.  writing,  but  shall  be  entered  on  the  minutes  of  the 
court. 

208.  SEC.  333.  Upon  the  exception,  the  court  shall  proceed  to  try  the 
sufficiency  of  the  challenge,  assuming  the  facts  alleged  therein  to  be  true. 

209.  SEC.  334.  If  on  the  exception  the  court  deem  the  challenge  suffi 
cient  it  may,  if  justice  require  it,  permit  the  party  excepting  to  withdraw  his 
exception  and  to  deny  the  facts  alleged  in  the  challenge.     If  the  exception 
be  allowed  the  court  may  in  like  manner  permit  an  amendment  of  the  chal 
lenge. 

210.  SEC.  335.  If  the  challenge  be  denied,  the  denial  in  like  manner  may 
be  oral,  and  shall  be  entered  on  the  minutes  of  the  court,  and  the  court  shall 
proceed  to  try  the  question  of  fact. 

211.  SEC.  336.  Upon  such  trial,  the  officers,  whether  judicial  or  minis 
terial,  whose  irregularity  is  complained  of,  as  well  as  any  other  person^,  may 
be  examined  to  prove  or  disprove  the  facts  alleged  as  the  grounds  of  chal 
lenge. 

212.  SEC.  337.  When  the  panel  is  formed  from  persons  whose  names  are 
not  drawn  from  the  grand  jury  box,  a  challenge  may  be  made  to  the  panel  on 
account  of  any  bias  of  the  officer  who  summoned  the  jury,  which  would  be 
good  ground  of  challenge  to  a  juror.     Such  objection  shall  be  made  in  the 
same  form  and  determined  in  the  same  manner  as  when  made  to  a  juror. 

213.  SEC.  338.  If,  either  upon  an  exception  to  the  challenge  or  a  denial 
of  the  fact,  the  challenge  be  allowed,  the  court  shall  discharge  the  jury  so 
far  as  the  trial  of  the  indictment  in  question  is  concerned.     If  it  be  disallow 
ed,  the  court  shall  direct  the  jury  to  be  empaneled. 

214.  SEC.  339.  Before  a  juror  is  called,  the  defendant  must  be  informed 
by  the  court  or  under  its  direction,  that  if  he  intend  to  challenge  any  indi 
vidual  juror  he  must  do  so  when  the  juror  appears  and  before  he  is  sworn. 

215.  SEC.  340.  A  challenge  to  an  individual  juror  is  either:    1st.  Peremp 
tory;  2d.  For  cause. 

216.  SEC.  341.  It  must  be  taken  when  the  juror  appears  and  before  he  is 
sworn,  but  the  court  may  for  good  cause  permit  it  to  be  taken  after  the  juror 
is  sworn  and  before  the  jury  is  completed. 

217.  SEC.  342.     A  peremptory  challenge  may  be  taken  by  either  party, 
and  may  be  oral.     It  is  an  objection  to  a  juror  for  which  no  reason  need  be 
given,  but  upon  which  the  court  shall  exclude  him. 

218.  Peremptory  challenges  are  interposed  at  the  option 
of  the  defense  or  the  prosecution,  and  each  defendant  has  a 
right  to  insist  that  the  limit  allowed  to  the  prosecution  is 
not  exceeded,  and  that  he  shall  not  be  deprived  of  the  judg 
ment  of  a  competent  and  impartial  juror  by  the  mere  whim 
or  caprice  of  his  co-defendant.     8  CaL  303. 

219.  SEC.  343.  If  the  offense  charged  be  punishable  with  death,  or  with 
imprisonment  in  a  state  prison  for  life,  the  defendant  shall  be  entitled  to  ten 
and  the  state  to  five  peremptory  challenges;  on  a  trial  for  any  other  offense, 
the  defendant  shall  be  entitled  to  five  and  the  state  to  three  peremptory  chal 
lenges. 


800 


JUSTICES    TREATISE. 


220.  SEC.  344.  A  challenge  for  cause  may  be  taken  by  either  party.     It  is 
an  objection  to  a  particular  jtfror,  and  is  either:    1st.  General,  that  the  juror 
is  disqualified  from  serving  in  any  case;  2d.  Particular,  that  he  is  disquali 
fied  from  serving  in  the  cause  on  trial. 

221.  Challenges  for  cause  may  be  made  by  any  party, 
and  when  a  fact  establishing  the  incompetence  of  a  juror  is 
brought  to  the  knowledge  of  the  court,  it  becomes  its  duty 
to  exclude  him  even  against  the  wishes  of  all  the  parties.     8 
Col.  303. 

222.  A  party  on  trial  is  entitled  to  a  lawful  jury,  but  is 
not  entitled  as  a  matter  of  absolute  right  to  have  the  first 
juror  who  is  called  and  possesses  all  the  statutory  qualifica- 
tions^sit  in  his  case.     32  Col.  40. 

223.  Nor  is  the  objection  well  taken  to  the  panel  of  a 
trial  jury,  on  the  ground  that  such  jury  were  summoned  by 
order  of  the  court  after  the  commencement  of  the  term.     10 
Col.  50. 

224.  SEC.  345.  General  causes  of  challenge  are:     1st.  A  conviction  for 
felony;    2d.   A  want  of  any  of  the  qualifications  prescribed  by  statute  to 
render  a  person  a  competent  juror;    3d.    Unsoundness  of  mind  or  such  de 
fect  in  the  faculties  of  the  mind  or  the  organs  of  the  body  as  renders  him 
incapable  of  performing  the  duties  of  a  juror. 

225.  SEC.  346.  Particular  causes  of  challenge  are  of  two  kinds :    1st.  For 
such  a  bias  as  when  the  existence  of  the  facts  is  ascertained  in  judgment  of 
law  disqualifies  the  juror  and  which  is  known  in  this  act  as  implied  bias; 
2d.  For  the  existence  of  a  state  of  mind  on  the  part  of  the  juror  in  reference 
to  the  case  which,  in  the  exercise  of  a  sound  discretion  on  the  part  of  trier, 
leads  to  the  inference  that  he  will  not  act  with  entire  impartiality,  and  which 
is  known  in  this  act  as  actual  bias. 

226.  SEC.  347.   A  challenge  for  implied  bias  may  be  taken  for  all  or  any 
of  the  following  causes,  and  for  no  other:     1st.  Consanguinity  or  affinity 
within  the  fourth  degree  to  the  person  alleged  to  be  injured  by  the  offense 
charged   or   on   whose   complaint  the  prosecution  was  instituted  or  to  the 
defendant;     2d.   Standing  in  the  relation  of  guardian  and  ward,  attorney 
and  client,  master  and  servant,  or  landlord  and  tenant,  or  being  a  member 
of  the  family  of  the  defendant  or  of  the  person  alleged  to  be  injured  by  the 
offense  charged,  or  on  whose  complaint  the  prosecution  was  instituted,  or  in 
his  employment  on  wages  ;    3d.   Being  a  party  adverse  to  the  defendant  in  a 
civil  action  or  having  complained  against  or  been  accused  by  him  in  a  crimi 
nal  prosecution  ;    4th.    Having  served  on  the  grand  jury  which  found  the 
indictment  or  on  a  coroner's  jury  which  inquired  into  the  death  of  a  person 
whose  death  is  the  subject  of  the  indictment ;    5th.  Having  served  on  a  trial 
jury  which  has  tried  another  person  for  the  offensft  charged  in  the  indictment; 
6th.  Having  been  one  of  a  jury  formerly  sworn  to  try  the  same  indictment 
and  whose  verdict  was  set  aside,  or  which  was  discharged  without  a  verdict 
after  the  case  was  submitted  to  it ;    7th.  Having  served  as  a  juror  in  a  civil 


CHALLENGING  THE  JUKY.  801 

action  brought  against  the  defendant  for  the  act  charged  as  an  offense  ;  8th. 
Having  formed  or  expressed  an  unqualified  opinion  or  belief  that  the  pris 
oner  is  guilty  or  not  guilty  of  the  offense  charged ;  9th.  If  the  offense 
charged  be  punishable  with  death,  the  entertaining  of  such  conscientious 
opinions  as  would  preclude  his  finding  the  defendant  guilty;  in  which  case 
he  shall  neither  be  permitted  nor  compelled  to  serve  as  a  juror. 

227.  The  defendant  in  a  criminal  case  has  a  right  to 
question  the  jurors  whether  they  have  formed  or  expressed 
an  opinion  relative  to  the  guilt  or  innocence  of  the  accused 
without  first  challenging  them  for  cause,  and  it  is  error  to 
compel  him  to  do  so.     5  Cal.  277. 

228.  A  challenge  for  implied  bias  in  criminal  cases  must 
specify  the  particular  cause  of  bias.     It  is  not  enough  to 
say,  "I  challenge  the  juror  .for  implied  bias."     16  Cal.  128; 
6  Cal.  206;  24  Cal.  17;  27  Cal.  507;  18  Cal.  180. 

229.  "When  a  juror  is  challenged  for  actual  bias  the 
triers  are  to  determine  the  fact  from  the  testimony,  and  any 
testimony  which  would  lead  to  the  conclusion  that  a  bias 
existed  in  the  juror's  mind  is  competent  testimony.     5  Cal. 
347. 

230.  To  ascertain  whether  a  bias  exists  in  the  mind  of 
the  juror,  resort  must  be  had  to  his  declarations  to  others 
or  to  his  sworn  statements  when  interrogated.     As  the  juror 
best  knows  the  condition  of  his  own  mind  no  satisfactory 
conclusion  can  be  arrived  at  without  resort  to  himself.     5 
Cal.  349. 

231.  The  intention  of  the  legislature  was  to  exclude  from 
the  jury-box   every  one  who  had  formed  an  unqualified 
opinion,  or  having  formed  an  opinion  had   expressed  it 
without  qualification.     6  Cal.  228. 

232.  An  objection  to  the  competency  of  a  juror  can  be 
taken  after  verdict.     9  Cal.  309,  (in  a  criminal  case). 

233.  The  competency  of  a  juror  must  be  determined  by 
the  court  and  not  by  the  juror.     29  Cal.  635. 

234.  SEC.  348.  An  exemption  from  service  on  a  jury  is  not  a  cause  for 
challenge,  but  the  privilege  of  the  person  exempted. 

235.  SEC.  349.  In  a  challenge  for  implied  bias,  one  or  more  of  the  causes 
stated  in  section  three  hundred  and  forty-seven  must  be  alleged.     In  a  chal 
lenge  for  actual  bins,  it  must  be  alleged  that  the  juror  is  biased  against  the 
party  challenging.     In  either  case  the  challenge  may  be  oral,  but  must  be 
entered  on  the  minutes  of  the  court. 

236.  SEC.  350.    The  adverse  party  may  except  to  the  challenge  in  the 

101 


802  JUSTICES'  TREATISE. 

same  manner  as  to  a  challenge  to  the  panel,  and  the  same  proceedings  shall 
be  had  thereon  as  prescribed  in  sections  three  hundred  and  thirty-two  and 
three  hundred  and  thirty-three,  except  that  if  the  exception  be  allowed,  the 
juror  shall  be  excluded.  He  may  orally  deny  the  facts  alleged  as  the  ground 
of  challenge. 

237.  SEC.  351.    If  the  facts  be  denied  the  challenge  shall  be  tried  as  fol 
lows:  1st.  If  it  be  for  implied  bias,  by  the  court;   2d.  If  it  be  for  actual  bias, 
by  triers. 

238.  SEC.  354.  Upon  the  trial  of  a  challenge  to  an  individual  juror,  the 
juror  challenged  may  be  examined  as  a  witness  to  prove  or  disprove  the 
challenge  and  shall  be  compelled  to  answer  every  question  pertinent  to  the 
inquiry  therein. 

239.  SEC.  355.    Other  witnesses  may  also  be  examined  on  either  side, 
and  the  rules  of  evidence  applicable  to  the  trial  of  other  issues  shall  govern 
the  admission  or  exclusion  of  testimony  on  the  trial  of  the  challenge. 

240.  SEC.  356.  On  the  trial  of  the  challenge  for  an  implied  bias  the  court 
shall  determine  the  law  and  the  facts,  and  shall  either  allow  or  disallow 
the  challenge  and  direct  an  entry  accordingly  on  the  minutes. 

241.  SEC.  358.  The  triers  must  thereupon  find  the  challenge  either  true 
or  not  true,  and  the  decision  is  final.     If  they  find  it  true  the  juror  shall  be 
excluded. 

242.  SEC.  359.   All  challenges  to  an  individual  juror  except  peremptory 
must  be  taken  first  by  the  defendant  and  then  by  the  people,  and  each  party 
must  exhaust  all  his  challenges  to  each  juror  as  he  is  called  before  the  other 
begins. 

243.  SEC.  360.   The  challenges  of  either  party  need  not  all  be  taken  at 
once,  but  they  must  be  taken  separately  in  the  following  order,  including  in 
each  challenge  all  the  causes  of  challenge  belonging  to  the  same  class:    1st. 
To  the  panel.    2d.  To  an  individual  juror  for  a  general  disqualification.     3d. 
To  an  individual  juror  for  an  implied  bias.     4th.  To  an  individual  juror  for 
an  actual  bias. 

244.  SEC.  361.   If  all  the  challenges  on  both  sides  be  disallowed,  either 
party  may  still  take  a  peremptory  challenge,  unless  the  peremptory  chal 
lenges  be  exhausted. 


CHAPTER   XXII. 
APPEALS,  WHEN  ALLOWED,  AND  HOW  TAKEN. 

245.  SEC.  481.  The  party  aggrieved  in  a  criminal  action,  whether  that 
party  be  the  people  or  the  defendant,  may  appeal  as  follows:  1st.  To  the 
county  court,  from  a  final  judgment  of  a  justice's,  recorder's,  or  other  in 
ferior  municipal  court;  2d.  To  the  supreme  court,  from  a  final  judgment  of 
the  district  court,  or  county  court,  in  all  criminal  cases  amounting  to  a 
felony,  on  questions  of  law  alone ;  also,  from  an  order  of  the  district  court, 
or  county  court,  granting  or  refusing  a  new  trial,  or  which  affects  a  substan 
tial  right  in  a  criminal  case  amounting  to  a  felony,  on  questions  of  law 
alone. 


APPEALS,   WHEN  ALLOWED  AND  HOW  TAKEN.  803 

246.  An  appeal  does  not  lie  to  the  county  court  from  an 
order  made  by  a  justice  of  the  peace,  directing  property 
alleged  to  have  been  stolen  and  discovered  and  brought 
before  the  justice  by  a  peace-officer,  by  virtue  of  a  search 
warrant  issued  by  the  justice,  to  be  delivered  to  the  owner. 
26  Cal  651. 

247 .  SEC.  482.  The  appeal  to  the  supreme  court  can  be  taken  on  ques 
tions  of  law  alone.     The  appeal  to  the  county  court  can  be  taken  on  both 
questions  of  law  and  fact.     (Does  not  apply  to  the  police  court  of  San 
Francisco.) 

248.  SEC.  483.  The  party  appealing  shall  be  known  as  the  appellant  and 
the  adverse  party  as  the  respondent. 

249.  SEC.  484.  Upon  the  appeal,  any  decision  of  the  court  in  an  inter 
mediate  order  or  proceeding  forming  a  part  of  the  record  may  be  revised. 

250.  SEC.  485.  An  appeal  must  be  taken  within  one  year  after  the  judg 
ment  was  rendered. 

251.  SEC.  486.  An  appeal  must  be  taken  by  the  service  of  a  notice  in 
writing  on  the  clerk  of  the  court  in  which  the  action  was  tried,  stating  that 
appellant  appeals  from  the  judgment. 

252.  SEC.  487.  If  the  appeal  be  taken  by  the  defendant,  a  similar  notice 
must  be  served  on  the  district  attorney  of  the  county  in  which  the  judgment 
was  rendered. 

253.  SEC.  488.  If  it  be  taken  by  the  people,  a  similar  notice  must  be 
served  upon  the  defendant  if  he  be  a  resident  of  the  county,  or  if  not  on 
the  counsel,  if  any,  who  appeared  for  him  on  trial,  if  he  be  living  within 
the   county.      If   such  service,  after  due  diligence,  cannot  be  made,  the 
appellate  court,  upon  proof  thereof,  shall  make  an  order  for  the  publication 
of  due  notice  in  some  newspaper,  and  for  such  time  as  it  may  deem  proper. 

254.  The  following  is  a  form  of  notice  of  appeal : 

In  the  justice's  court  of  the township,  of  the  county  of .state  of 


plaintiff, 
against 


defendant. 

You  will  please  take  notice  that  the in  the  above-entitled  action 

hereby  appeal  to  the  county  court  of  the county  of from  the  judg 
ment  therein  made  and  entered  in  the  said  justice's  court,  on  the day 

of ,  A.D.  18. .,  against  said  defendant  and  from  the  whole  of  said  judg 
ment.  This  appeal  is  taken  on  questions  of  both  law  and  fact  [or,  upon 
questions  of  law,  as  the  case  may  be]. 

Dated ,  A.D.  18.. 

Yours,  etc., 


Attorney  for  appellant. 

To  the  justice  of  said  justice's  court,  and esq., 

Attorney  for  respondent. 


804  JUSTICES'  TREATISE. 

255.  If  notice  of  appeal  is  given  from  an  order  of  a 
justice  directing  stolen   property  to   be   delivered  to  the 
alleged  owner,  the  county  court  has.no  jurisdiction  to  com 
pel,  by  writ  of  mandate,  the  justice  to  send  up  the  papers. 
26  Col.  651. 

256.  SEC.  489.  At  the  expiration  of  the  time  appointed  for  the  publica 
tion,  on  filing  an  affidavit  of  the  publication,  the  appeal  shall  be  deemed 
perfected. 

257.  SEC.  490.  An  appeal  taken  by  the  people  shall  in  no  case  stay  or 
affect  the  operation  of  a  judgment  in  favor  of  the  defendant,  until  judgment 
is  reversed. 

258.  SEC.  491.  No  appeal  from  a  judgment  of  conviction,  unless  it  be 
one  imposing  a  fine  only,  shall  stay  the  execution  of  the  judgment,  but  the 
defendant,  if  in  custody,  shall  remain  in  custody  to  abide  the  judgment 
upon  the  appeal,  unless  admitted  to  bail,  as  prescribed  in  section  five 
hundred  and  fourteen. 

259.  SEC.  492.  Upon  the  appeal  being  taken,  the  clerk  with  whom  the 
notice  of  appeal  is  filed,  must  within  ten  days  thereafter,  without  charge, 
transmit  to  the  clerk  of  the  supreme  court  a  copy  of  the  notice  of  appeal 
and  of  the  record,  and  upon  the  receipt  of  the  record  it  shall  be  the  duty 
of  the  clerk  of  the  supreme  court  to  file   said  record,  and  perform  the 
same  service  as  in  civil  cases,  without  demanding  his  fees  therefor;  said 
fees,  in  case  of  a  reversal  of  the  jxidgment  and  ultimate  acquittal  of  the 
defendant,  to  be  a  charge  against  the  state,  and  in  case  of  an  affirmance  of 
the  judgment  appealed  from  to  be  a  charge  against  the  defendant,  and  col 
lected  in  the  same  manner  as  judgment  in  civil  cases;  provided,  however, 
that  in  case  of  the  insolvency  of  the  defendant,  and  his  inability  to  pay 
said  costs,  then  and  in  that  event  they  shall  become  a  charge  against  the 
state. 

260.  Jurisdiction. — The  supreme  court  has  no  jurisdic 
tion   on   appeal  in   a   criminal   action  where   the   offense 
charged  is  less  than  a  felony.     30  Gal.  98 ;  5  Col.  295 ;  31 
Cat.  565. 

261.  On  an  appeal  from  a  magistrate's  court,  or  of  the 
police  court  of  the  city  and  county  of  San  Francisco,  to  the 
county  court,  in  criminal  cases,  a  statement  is  unnecessary 
if   the  pleadings  and  docket  of  the  magistrate  show  the 
error  relied  on.     26  Col.  635. 

Statement  on  Appeal  in  Criminal  Case. — In  a  criminal  case, 
wherever  the  alleged  error  appears  upon  the  face  of  the 
complaint,  or  in  the  record  of  the  justice,  or  upon  the  face 
of  the  proceedings  before  the  justice,  a  statement  is  un 
necessary  on  an  appeal  to  the  county  court.  37  Gal.  454. 

262.  Appeal  from  Police  Court  of  San  Francisco. — An 


DEFENDANT  ADMITTED  TO  BAIL.  805 

appeal  from  a  judgment  of  the  police  judge's  court  of  the 
city  of  San  Francisco  to  the  county  court  can  only  be 
heard  by  a  trial  de  novo  in  the  county  court.  26  Col.  635. 

263.  SEC.  502.  If  a  judgment  against  the  defendant  be  reversed,  without 
ordering  a  new  trial,  the  appellate  court  shall  direct,  if  he  be  in  custody, 
that  he  be  discharged  therefrom,  or  if  he  be  admitted  to  bail,  that  his  bail  be 
exonerated,  or  if  money  be  deposited  instead  of  bail,  that  it  be  refunded  to 
the  defendant. 

264.  SEC.  503.  On  a  judgment  of  affirmance  against  the  defendant,  the 
original  judgment  shall  be  carried  into  execution  as  the  appellate  court  may 
direct. 

265.  SEC.  506.  After  the  certificate  of  judgment  has  been  remitted,  as 
provided  in  section  five  hundred  and  fourth,  the  appellate  court  shall  have 
no  further  jurisdiction  of  the  appeal  or  of  the  proceedings  thereon,  and  all 
orders  which  may  be  necessary  to  carry  the  judgment  into  effect  shall  be 
made  by  the  court  to  which  the  certificate  is  remitted. 


CHAPTER    XXIII. 

IN  WHAT  CASES  THE  DEFENDANT  MAY  BE 
ADMITTED  TO  BAIL. 

266.  SEC.  507.  Admission  to  bail  is  the  order  of  a  competent  court  or 
magistrate,  that  the  defendant  be  discharged  from  actual  custody  upon  the 
taking  of  bail. 

267 .  SEC.  508.  The  taking  of  bail  consists  in  the  acceptance  by  a  compe 
tent  court  or  magistrate,  of  the  recognizance  of  sufficient  bail  for  the  ap 
pearance  of  the  defendant,  according  to  the  terms  of  the  recognizance,  or 
that  the  bail  will  pay  to  the  people  of  this  state  a  specified  sum. 

268.  SEC.  509.  A  person  charged  with  an  offense  may  be  admitted  to 
bail  before  conviction,  as  a  matter  of  right,  in  all  cases  except  as  specified  in 
section  five  hundred  and  ten. 

269.  SEC.  510.  No  person  shall  be  admitted  to  bail  where  he  is  charged 
with  an  offense  punishable  with  death,  when  the  proof  is  evident  or  the 
presumption  great. 

270.  SEC.  511.  When  the  admission  to  bail  is  a  matter  of  discretion,  the 
court  or  officer  by  whom  it  may  be  ordered,  shall  require  such  notice  of  the 
application  therefor  as  he  may  deem  reasonable  to  be  given  to  the  district 
attorney  of  the  county  where  the  examination  is  had. 

271.  SEC.  512.  After  the  conviction  of  an  offense  not  punishable  with 
death,  a  defendant  who  has  appealed  may  be  admitted  to  bail:  1st,  As  a  mat 
ter  of  right  where  the  appeal  is  from  a  judgment  imposing  a  fine  only;  2d, 
A  matter  of  discretion  in  all  other  cases. 

272.  SEC.  513.  Before  conviction  a  defendant  maybe  admitted  to  bail: 
1st,  For  his  appearance  before  the  magistrate,  on  the  examination  of  the 
charge  before  being  held  to  answer;  2d,  To  appear  at  the  conftto  which  the 


806  JUSTICES'  TREATISE. 

magistrate  is  required  by  section  one  hundred  and  seventy-six,  to  return  the 
depositions  and  statement  upon  the  defendant  being  held  to  answer  after 
examination;  3d,  After  indictment,  either  before  the  bench  warrant  issued 
for  his  arrest,  or  upon  any  order  of  the  court  committing  or  enlarging  the 
amount  of  bail,  or  upon  his  being  surrendered  by  his  bail  to  answer  the  in 
dictment  in  the  court  in  which  it  is  found,  or  to  which  it  may  be  sent  or 
removed  for  trial. 

273.  SEC.  514.  After  conviction  and  upon  an  appeal  the  defendant  may 
be  admitted  to  bail  as  follows:  1st,  If  the  appeal  be  from  a  judgment  im 
posing  a  fine  only  on  the  recognizance  of  bail  that  he  will  pay  the  same  or 
such  part  of  it  as  the  appellate  court  may  direct,  if  the  judgment  be  affirmed 
or  modified  or  the  appeal  be  dismissed;  2d,  If  judgment  of  imprisonment 
have  been  given  that  he  will  surrender  himself  in  execution  of  the  judgment, 
upon  its  being  confirmed  or  modified  or  upon  the  appeal  being  dismissed. 

People  vs.  Cabannes  et  al. — This  is  an  action  upon  a  pa 
per  purporting  to  be  an  appeal  bond  in  a  criminal  case. 
The  criminal  practice  act  does  not  require  a  bond  on  ap 
peal,  and  we  regard  the  paper  in  question  as  of  no  force  or 
effect.  The  provisions  relied  on  to  sustain  it  are  those 
relating  to  bail,  but  an  examination  of  these  provisions  will 
show  that  it  is  ineffectual  as  a  bail  bond.  The  case  was 
tried  before  a  justice  of  the  peace,  and  a  judgment  ren 
dered  imposing  a  fine,  and  in  default  of  payment  impris 
onment  in  the  county  jail.  The  bond  recites  a  money 
judgment  and  binds  the  sureties  for  its  payment,  setting 
forth  substantially  the  conditions  required  in  an  under 
taking  on  appeal  to  the  county  court  in  civil  cases.  Section 
514  of  the  act  referred  to  provides  that  "After  conviction 
and  upon  an  appeal,  the  defendant  may  be  admitted  to  bail 
as  follows :  1st,  If  the  appeal  be  from  a  judgment  imposing 
a  fine  only  on  the  recognizance  of  bail,  that  he  will  pay  the 
same,  or  such  part  of  it  as  the  appellate  court  may  direct, 
if  the  judgment  be  affirmed  or  modified,  or  the  appeal  be 
be  dismissed;  2d,  If  judgment  of  imprisonment  have  been 
given,  that  he  will  surrender  himself  in  execution  of  the 
judgment,  upon  its  being  affirmed  or  modified  or  upon  the 
appeal  being  dismissed."  This  section  prescribes  the  terms 
to  be  complied  with  in  giving  bail,  and  it  is  obvious  that 
the  second  subdivision  is  the  one  to  be  considered  in  de 
termining  the  effect  of  the  bond.  The  justice  seems  to 
have  regarded  the  judgment  as  imposing  a  fine  only,  and 
the  counsel  for  the  people  contends  that  this  is  the  proper 


BAIL — HELD  TO  ANSWER  BEFORE  INDICTMENT.     807 

view  to  take  of  it.  It  is  plain,  however,  that  the  imprison 
ment  is  as  much  a  part  of  the  judgment  as  the  fine,  and  to 
be  relieved  from  that  an  obligation  to  pay  the  firm  was  not 
necessary.  In  taking  the  bond,  the  justice  has  exacted  a 
security  which  the  statute  does  not  require,  and  such  being 
the  case,  we  are  of  opinion  that  no  liability  resulted  from 
its  execution.  20  Gal.  528,  529. 


CHAPTER   XXIV. 

BAIL— UPON  BEING  HELD  TO  ANSWEK  BEFOEE 
INDICTMENT. 

275.  SEC.  515.  When  the  defendant  has  been  held  to  answer  as  provided 
in  section  one  hundred  and  sixty-four,  the  admission  to  bail  may  be  by  the 
magistrate  by  whom  he  is  so  held  or  by  any  magistrate  who  has  the  power  to 
issue  the  writ  of  habeas  corpus. 

276.  SEC.  516.  Bail  is  put  in  by  a  written  recognizance  executed  by  two 
sufficient  sureties  [with  or  without  the  defendant,  in  the  discretion  of  the 
court  or  magistrate],  and  acknowledged  before  the  court  or  magistrate  in  sub 
stantially  the  following  form:     "  An  order  having  been  made  on  the  ....  day 
of  .....  A.D.  18. .,  by  .....  a  justice  of  the  peace  of  ....  county  [or  as  the 
case  may  be],  that  .....  held  to  answer  upon  a  charge  of  [stating  briefly  the 
nature  of  the  offense],  upon  which  he  has  been  duly  admitted  to  bail  in  the 

sum  of  ....  dollars;  We and  ....  [stating  their  place  of  residence], 

hereby  undertake  that  the  above  ....  shall  appear  and  answer  the  charge 
above  mentioned  in  whatever  court  it  may  be  prosecuted,  and  shall  at  all 
times  hold  himself  amenable  to  the  orders  and  process  of  the  court,  and  if 
convicted  shall  appear  for  judgment  and  render  himself  in  execution  thereof, 
or  if  he  fail  to  perform  either  of  these  conditions  that  he  will  pay  to  the 

people  of  the  state  of  California,  the  sum  of dollars  [inserting  the  sum 

in  which  the  defendant  is  admitted  to  bail]. 

277.  SEC.  517.  The  qualifications  of  bail  are  as  follows:    1st.  Each  of 
them  must  be  a  resident  and  a  householder  or  freeholder  within  the  state; 
but  the  court  or  magistrate  may  refuse  to  accept  any  person  as  bail  who  is 
not  a  resident  of  the  county  where  bail  is  offered.    2d.  They  must  each  be 
worth  the  amount  specified  in  the  recognizance,  exclusive  of  property  exempt 
from  execution;  but  the  court  or  magistrate  on  taking  bail,  may  allow  more 
than  two  bail  to  justify  severally  in  amounts  less  than  that  expressed  in  the 
recognizance,  if  the  whole  justification  be  equivalent  to  that  of  sufficient  bail. 

278.  SEC.  518.     The  bail  shall  in  all  cases  justify  by  affidavit  taken  be 
fore  the  court  or  magistrate,  as  the  case  may  be.     The  affidavit  must  state 
that  they  each  possess  the  qualifications  provided  in  section  five  hundred  and 
seventeen. 

279.  SEC.  519.  The  court  or  magistrate  may  thereupon  further  examine 
the  bail  upon  oath  concerning  their  sufficiency  in  such  manner  as  the  court 
or  magistrate  may  deem  proper. 


808  JUSTICES'  TREATISE. 

280.  Under  our  practice,  bail  is  taken  by  a  recognizance 
executed  by  sureties,  and  the  accused  need  not  sign  it;  and 
upon  forfeiture,  the  proceedings  on  the  recognizance  can 
only  be  by  action  against  the  sureties.  19  Gal.  576;  19  Cal. 
539. 


CHAPTER   XXV. 
BAIL  UPON  INDICTMENT  BEFORE  CONVICTION. 

281.  SEC.  520.  When  the  offense  charged  in  the  indictment  is  not  capital 
the  officer  serving  the  bench  warrant  shall,  if  required,  take  the  defendant 
before  a  magistrate  in  the  county  in  which  it  is  issued  or  in  which  he  is 
arrested  for  the  purpose  of  giving  bail  as  prescribed  in  sections  two  hundred 
and  sixty-fifth  and  two  hundred  and  sixty-eighth. 

282.  SEC.  523.  The  bail  must  be  put  in  by  a  written  recognizance,  executed 
by  two  sufficient  sureties  [with  or  without  the  defendant,  in  the  discretion  of 
the  court  or  magistrate],  and  acknowledged  before  the  court  or  magistrate 
in  substantially  the  following  form.     "An  indictment  having  been  found 
on  the  ....  day  of  . . . . ,  A.D.  18 . . ,  in  the  county  court  of  the  county  of  ..... 
charging  ....  with  the  crime  of  ....  [designating  it  generally],  and  he  hav 
ing  been  duly  admitted  to  bail  in  the  sum  of dollars,  we, and , 

of [stating  their  place  of  residence],  hereby  undertake  that  the  above 

named  ....   shall  appear  and  answer  the  indictment  above  mentioned,  in 
whatever  coiirt  it  may  be  proseciited,  and  shall  at  all  times  render  himself 
amenable  to  the  orders  and  processes  of  the  court,  and  if  convicted  shall  ap 
pear  for  judgment  and  render  himself  in  execution  thereof;  or,  if  he  fail  to 
perform  either  of  these  conditions,  that  we  will  pay  to  the  people  of  the 

state  of  California  the  sum  of dollars  [inserting  the  sum  in  which  the 

defendant  is  admitted  to  bail]." 

283.  SEC.  524.  The  provisions  contained  in  section  five  hundred  and  sev 
enteenth  to  five  hundred  and  nineteenth,  both  inclusive,  in  relation  to  bail, 
shall  apply  to  the  qualifications  of  the  bail  and  to  all  the  proceedings  respect 
ing  the  putting  in  and  justifying  of  bail  and  incident  thereto. 

284.  The  following  is  a  form  of  justification : 

State  of ,  ) 

county  of \  SS- 

and ,  the  sureties  in  the  within-named  undertaking  be 
ing  duly  sworn,  say  each  for  himself,  and  not  one  for  the  other,  that  he  is 

worth  the  sum  of dollars,  over  and  above  all  his  debts  and  'liabilities, 

exclusive  of  property  exempt  from  execution,  and  that  he  is  a  resident  of  said 
county,  and  a  freeholder  or  householder  therein. 


Subscribed  and  sworn  to  before  me  this  ....  day  of ,  18 .. 

Justice  of  the  peace  in  and  for  said  county. 


BAIL  ON  APPEAL.  809 

CHAPTER     XXVI. 
BAIL    ON   APPEAL. 

285.  SEC.  525.   In  the  cases  in  which  the  defendant  may  be  admitted  to 
bail  xipon  appeal,  as  provided  in  section  five  hundred  and  twelfth,  the  order 
admitting  him  to  bail  may  be  made  by  any  magistrate  having  the  power  to 
issue  a  writ  of  habeas  corpus. 

286.  SEC.  526.    When  the  admission  to  bail  is  a  matter  of  discretion,  the 
court  or  officer  by  whom  it  may  be  ordered,  shall  require  such  notice  of  the 
application  therefor  as  he  may  deem  reasonable  to  be  given  to  the  district 
attorney  of  the  county  in  which  the  verdict  or  judgment  was  originally 
rendered. 

287.  SEC.  527.  The  bail  must  possess  the  qualifications  and  must  be  put 
in  all  respects  as  above  provided,  except  that  the  condition  of  the  recogniz 
ance  shall  be  to  the  effect  that  the  defendant  will  in  all  respects  abide  the 
orders  and  judgment  of  the  appellate  court  upon  the  appeal. 

288.  The  following  is  a  form  of  criminal  appeal  bond: 

In  the  justice's  court  of  ....  township,  in  the  county  of  . . . .,  state  of 

Before esq.,  justice  of  the  peace. 

Know  all  men  by  these  presents,  that  we, as  principal,  and  .... 

and ,  as  sureties,  are  held  and  firmly  bound  unto  the  people  of 

the  state  of  California,  in  the  full  sum  of  dollars,  for  the  payment  of 

which  well  and  truly  to  be  made  we  bind  ourselves,  our  heirs,  executors  and 
administrators,  jointly  and  severally,  firmly  by  these  presents. 

Signed  with  our  hands  and  sealed  with  our  seals,  this day  of  , 

A.D.  18.. 

The  condition  of  the  above  undertaking  is  such  that  whereas  the  said 

was,  on  the day  of ,  A.D.  18 . . ,  before ,  esq.,  a  justice 

of  the  peace  in  and  for  the  county  of ,  duly  convicted  of  the  crime  of 

,  and  upon  said  conviction  it  was  ordered,  adjudged  and  decreed  by  the 

said  justice  that  the  said pay  a  fine,  the  sum  of  ....  dollars,  and 

that  said be  imprisoned  in  the  county  jail  in  and  for  the  said  county 

of .till  said  fine  be  paid,  the  said  term  of  imprisonment  not  to  exceed 

And  whereas,  the  said is  desirous  of  appealing  from  the  decision 

and  judgment  of  said  justice  to  the  county  court  in  and  for  the county 

of  .... 

Now,  therefore,  if  the  said  judgment  shall  be  affirmed  or  modified,  or  the 

appeal  be  dismissed  by  the  said  county  court  and  the  said shall 

well  and  truly  pay,  or  cause  to  be  paid,  the  fine  aforesaid,  the  sum  of 

dollars,  or  such  part  of  said  fine  as  the  said  county  court  may  direct,  to 
gether  with  all  costs  in  this  cause  that  may  have  accrued  in  the  said  county 
court  as  well  as  in  the  said  justice's  court,  and  shall  obey  any  and  all  orders 

102 


810  JUSTICES'  TREATISE. 

the  said  county  court  may  make  therein,  then  this  obligation  to  be  null  and 
void  and  of  no  effect,  otherwise  to  be  and  remain  in  full  force  and  virtue. 


Witnessed  and  approved  by  me  this  ----  day  of  ----  ,  A.D.  18  .  . 


Justice  of  the  peace  in  and  for  said  county. 
[See  justification  of  sureties,  284.] 


CHAPTER   XXVII. 
DEPOSIT  INSTEAD  OF  BAIL. 

289.  SEC.  528.  The  defendant  at  any  time  after  an  order  admitting  him 
to  bail,  instead  of  giving  bail  -may  deposit  with  the  clerk  of  the  court  in 
which  he  is  held  to  answer,  the  sum  mentioned  in  the  order,  and  upon  de 
livering  to  the  officer  in  whose  custody  he  is  a  certificate  of  the  deposit  he 
shall  be  discharged  from  custody. 

290.  SEC.  529.   If  the  defendant  have  given  bail,  he  may  at  any  time  be 
fore  the  forfeiture  of  the  recognizance  in  like  manner  deposit  the  sum  men 
tioned  in  the  recognizance,  and  upon  the  deposit  being  made  the  bail  shall 
be  exonerated. 

291.  SEC.  530.  When  money  has  been  deposited,  if  it  remain  on  deposit 
at  the  time  of  a  judgment  for  the  payment  of  a  fine,  the  county  clerk  shall, 
under  the  direction  of  the  court,  apply  the  money  in  satisfaction  thereof,  and 
after  satisfying  the  fine  and  costs  shall  refund  the  surplus,  if  any,  to  the 
defendant. 


CHAPTER   XXVIII. 
SUBBENDEB  OF  THE  DEFENDANT. 

292.  SEC.  531.   At  any  time  before  the  forfeiture  of  their  recognizance, 
the  bail  may  surrender  the  defendant  in  their  exoneration  or  he  may  surren 
der  himself  to  the  officer  to  whose  custody  he  was  committed  at  the  time  of 
giving  bail,  in  the  following  manner : 

293.  SEC.  532.   A  certified  copy  of  the  recognizance  of  bail  shall  be  de 
livered  to  the  officer  who  shall  detain  the  defendant  in  his  custody  thereon 
as  upon  a  commitment,  and  shall  by  a  certificate  in  writing  acknowledge  the 
surrender. 

2d.  Upon  the  recognizance  and. a  certificate  of  the  officer  the  court  in 
which  the  action  is  pending  may,  upon  notice  of  five  days  to  the  district 
attorney  of  the  county  with  a  copy  of  the  recognizance  and  certificate,  order 
that  the  bail  be  exonerated,  and  on  filing  the  orders  and  the  papers  used  on 
the  application  they  shall  be  exonerated  accordingly. 

' 


RECOMMITMENT  AFTER  GIVING  BAIL.  811 

294.  SEC.  533.  For  the  purpose  of  surrendering  the  defendant,  the  bail 
at  any  time  before  they  are  discharged,  and  at  any  place  within  the  state, 
may  themselves  arrest  him,  or  by  a  written  authority  indorsed  on  a  certified 
copy  of  the  recognizance  may  empower  any  person  of  suitable  age  and  dis 
cretion  to  do  so. 

295.  SEC.  534.  If  money  have  been  deposited  instead  of  bail  and  the  de 
fendant  at  any  time  before  the  forfeiture  thereof  shall  surrender  himself  to 
the  officer  to  whom  the  commitment  was  directed  in  the  manner  provided  in 
the  last  two  sections,  the  court  shall  order  a  return  of  the  deposit  to  the 
defendant,  upon  producing  the  certificate  of  the  officer  showing  the  surren 
der,  and  upon  a  notice  of  five  days  to  the  district  attorney  with  a  copy  of  the 
certificate. 


CHAPTER   XXIX. 

FOEFEITUEE  OF  THE  EECOGNIZANCE,  OK  OF 
THE  DEPOSIT  OF  MONEY. 

296.  SEC,  535.  If  without  sufficient  excuse  the  defendant  neglect  to  ap 
pear  for  arraignment  or  for  trial  or  judgment,  or  upon  any  other  occasion, 
when  his  presence  in  court  may  be  lawfully  required,  or  to  surrender  him 
self  in  execution  of  the  judgment,  the  court  shall  direct  the  fact  to  be 
entered  upon  its  minutes,  and  the  recognizance  or  the  money  deposited 
instead  of  bail,  as  the  case  may  be,  shall  thereupon  be  declared  forfeited. 

297.  SEC.  536.  If  at  any  time  before  the  final  adjournment  of  the  court 
the  defendant  appear  and,  satisfactorily  excuse  his  neglect,  the  court  may 
direct  the  forfeiture  of  the  recognizance  or  the  deposit  to  be  discharged  upon 
such  terms  as  may  be  just. 

298.  SEC.  537.  If  the  forfeiture  be  not  discharged  as  provided  in  the  last 
section,  the  district  attorney  may  at  any  time  after  the  adjournment  of  the 
court  proceed  by  action  only  against  the  bail  upon  their  recognizance. 

299.  SEC.  538.  If  by  reason  of  the  neglect  of  the  defendant  to  appear,  as 
provided  in  section  five  hundred  and  thirty-fifth,  money  deposited  instead  of 
bail  is  forfeited,  and  the  forfeiture  be  not  discharged  or  remitted,  as  pro 
vided  in  section  five  hundred  and  thirty-sixth,  the  clerk  with  whom  it  is 
deposited  shall  immediately  after  the  final  adjournment  of  the  court  pay 
over  the  money  deposited  to  the  county  treasurer. 


CHAPTER   XXX. 

RECOMMITMENT    OF    THE   DEFENDANT    AFTEE 
HAYING  GIVEN  BAIL. 

300.  SEC.  539.  The  court  to  which  the  committing  magistrate  shall  re 
turn  the  depositions  and  statement,  or  in  which  an  indictment  or  an  appeal 
is  pending,  or  to  which  a  judgment  on  appeal  is  remitted  to  be  carried  into 


812  JUSTICES'  TEEATISE. 

effect,  may,  by  an  order  to  be  entered  on  its  minutes,  direct  the  arrest  of 
the  defendant  and  his  commitment  to  the  officer  to  whose  custody  he  was 
committed  at  the  time  of  giving  bail,  and  his  detention  until  legally  dis 
charged  in  the  following  cases:  1st,  When  by  reason  of  his  failure  to  appear 
he  has  incurred  a  forfeiture  of  his  bail  or  of  money  deposited  instead 
thereof,  as  provided  in  section  five  hundred  and  thirty-fifth;  2d,  When  it 
satisfactorily  appears  to  the  court  that  his  bail  or  either  of  them  are  dead  or 
insufficient,  or  have  removed  from  the  state;  3d,  Upon  an  indictment  being 
found  in  the  cases  provided  in  section  two  hundred  and  sixty-ninth. 

301.  SEC.  540.  The  order  for  the  recommitment  of  the  defendant  shall 
recite  generally  the  facts  upon  which  it  is  founded,  and  shall  direct  that  the 
defendant    be    arrested  by  any  sheriff,  constable,   marshal  or  policeman 
within  this  state,  and  committed  to  the  custody  of  the  sheriff  of  the  county 
where  the  depositions  and  statement  were  returned,  or  the  indictment  was 
found,  or  the  conviction  was  had,  as  the  case  may  be,  to  be  detained  until 
legally  discharged. 

SEC.  541.  The  defendant  may  be  arrested  pursuant  to  the  order,  upon 
a  certified  copy  thereof  in  any  county  in  the  same  manner  as  upon  a 
warrant  of  arrest,  except  that  when  arrested  in  another  county  the  order 
need  not  be  indorsed  by  a  magistrate  of  that  county. 

302.  SEC.  542.  If  the  order  recite  as  the  grounds  upon  which  it  is  made 
the  failure  of  the  defendant  to  appear  for  judgment  upon  conviction,  the 
defendant  must  be  committed  according  to  the  requirement  of  the  order. 

303.  SEC.  543.  If  the  order  be  made  for  any  other  cause,  and  the  of 
fense  be  bailable,  the  court  may  fix  the  amount  of  bail,  and  may  cause  a 
direction  to  be  inserted  in  the  order  that  the  defendant  be  admitted  to  bail 
in  the  sum  affixed,  which  shall  be  specified  in  the  order. 

304.  SEC.  544.  When  the  defendant  is  admitted  to  bail,  the  bail  may  be 
taken  by  any  magistrate  in  the  county  having  authority  in  a  similar  case  to 
admit  to  bail  upon  the  holding  the  defendant  to  answer  before  an  indict 
ment,  as  prescribed  in  section  five  hundred  and  fifteenth,  or  by  any  other 
magistrate  to  be  designated  by  the  court. 

305.  SEC.  545.  When  bail  is  taken  upon  the  recommitment  of  the  de 
fendant,  the  recognizance  shall  be  in  substantially  the  following  form : 

An  order  having  been  made  on  the day  of  ,  A.D.  18. .,  by  the 

court  [naming  it],  that be  admitted  to  bail  in  the  sum  of dollars, 

in  an  action  pending  in  that  court  against  him  in  behalf  of  the  people  of 
the  State  of  California  upon  an  ["information,  presentment,  indictment  or 

appeal,"  as  the  case  may  be];  we, and ,  of  [stating  their  places  of 

residence],  hereby  undertake  that  the  above-named  ....  shall  appear  in 
that  or  any  other  court  in  which  his  appearance  may  be  lawfully  required 
upon  that  [" information,  presentment,  indictment  or  appeal,"  as  the  case 
maybe];  and  shall  at  all  times  render  himself  amenable  to  its  orders  and 
processes,  and  appear  for  judgment  and  surrender  himself  in  execution 
thereof,  or  if  he  fail  to  perform  either  of  these  conditions,  that  he  will  pay 
to  the  people  of  the  State  of  California  the  sum  of  ....  dollars,  [insert  the 
sum  in  which  the  defendant  is  admitted  to  bail]. 

306.  SEC.  546.  The  bail  must  possess  the  qualifications,  and  must  be 
put  in,  in  all  respects,  in  the  manner  heretofore  prescribed. 


COMPELLING  THE  ATTENDANCE  OF  WITNESSES.  813 

CHAPTER   XXXI. 
COMPELLING  THE  ATTENDANCE  OF  WITNESSES. 

307 .  SEC.  547.  The  process  by  which  the  attendance  of  a  witness  before 
a  court  or  magistrate  is  required  is  a  subpena. 

308.  SEC.  548.  A  magistrate  before  whom  an  information  is  laid  may 
issue  subpenas  subscribed  by  him  for  witnesses  within  the  state,  either  on 
behalf  of  the  people  or  of  the  defendant. 

309.  SEC.  552.  A  subpena  authorized  by  the  last  four  sections  shall  be 
substantially  in  the  following  form :  The  people  of  the  state  of  California  to 

You  are  commanded  to  appear  before ,  a  justice  of  the 

peace  of  ....  township,  in  ....  county  [or  as  the  case  may  be],  at  [naming 
the  place],  on  [stating  the  day  and  hour]  as  a  witness  in  a  criminal  action, 

prosecuted  by  the  people  of  the  state  of  California,  against Given 

under  my  hand,  this  ....  day  of  .....  A.D.  18 ,  justice  of  the 

peace  [or  " ,  district  attorney,"  or  "by  order  of  the  court, 

. . . .,  clerk,"  as  the  case  may  be]. 

310.  SEC.  553.  If  books,  papers  or  documents,  be  required,  a  direction 
to  the  following  effect  shall  be  contained  in  the  subpena  :  And  you  are 
required  to  bring  with  you  the  following  [describing  intelligibly  the  books, 
papers  or  documents  required). 

311.  SEC.  554.  A  peace-officer  must  serve  within  his  county  any  subpena 
delivered  to  him  for  service,  either  on  the  part  of  the  people  or  of  the 
defendant,  and  must  make  a  written  return  of  the  service,  subscribed  by 
him,  stating  the  time  and  place  of  service  without  delay. 

31Z.  SEC.  555.  The  service  of  a  subpena  shall  be  by  showing  the  original 
to  the  witness  personally  and  informing  him  of  the  contents. 

SEC.  556.  When  a  person  shall  attend  before  a  magistrate,  grand  jury  or 
court,  as  a  witness  on  behalf  of  the  people,  upon  a  subpena  or  by  virtue  of 
a  recognizance,  and  it  shall  appear  that  he  has  come  from  any  place  out  of 
the  county  or  that  he  is  poor,  the  court,  if  the  attendance  of  the  witness  be 
upon  a  trial  by  an  order  upon  its  minutes,  or  in  any  other  case  the  county 
judge  by  an  order  subscribed  by  him,  may  direct  the  treasurer  of  the  county 
to  pay  the  witness  a  reasonable  sum  to  be  specified  in  the  order  for  his 
expenses. 

313.  SEC.  557.  Upon  the  production  of  the  order  or  a  certified  copy 
thereof,  the  county  treasurer  shall  pay  the  witness  the  sum  specified  therein 
out  of  the  county  treasury. 

314.  SEC.  558.  No  person  shall  be  obliged  to  attend  as  a  witness  before 
any  court  or  judge  out  of  the  county  where  the  witness  resides  or  is  served 
with  the  subpena,  unless  a  judge  of  the  court  in  which  the  offense  is  triable, 
or  ;v  justice  of  the  supreme  court  or  a  county  judge,  upon  an  affidavit  of  the 
district  attorney  or  prosecutor  of  the  defendant  or  his  counsel,  stating  that 
he  believes  the  evidence  of  the  witness  is  material  and  his  attendance  at  the 
examination  or  trial  necessary,  shall  indorse  on  the  subpena  an  order  for 
the  attendance  of  the  witness. 

315.  SEC.  559.  Disobedience  to  a  subpena  or  a  refusal  to  be  sworn  or  to 


814  JUSTICES'  TREATISE. 

answer  as  a  witness  may  be  punished  by  the  court  or  magistrate  as  a  con 
tempt. 

316.  SEC.  560.  Where  a  witness  has  entered  into  a  recognizance  to  ap 
pear,  as  provided  in  section  one  hundred  and  seventieth,  upon  his  failure  to 
do  so  his  recognizance  shall  be  forfeited  in  the  same  manner  as  recogniz 
ances  of  bail. 

317.  SEC.  561.  A  witness  disobeying  a  subpena  issued  on  the  part  of  the 
defendant,  shall  also  forfeit  to  the  defendant  the  sum  of  one  hundred  dol 
lars,  which  may  be  recovered  in  a  civil  action  unless  good  cause  can  be 
shown  for  his  non-attendance. 


CHAPTER-   XXXII. 

INQUIRY  INTO  THE  INSANITY  OF  THE  DEFEND 
ANT  BEFORE  TEIAL  OB  AFTEE  CONVICTION. 

318.  SEC.  583.  An  act  done  by  a  person  in  a  state  of  insanity  cannot  be 
punished  as  a  public  offense,  nor  can  a  person  be  tried,  adjudged  to  punish 
ment  or  punished  for  a  public  offense,  while  he  is  insane. 


CHAPTER    XXXIII. 
ENTITLING    AFFIDAVITS. 

319.  SEC.  600.  It  shall  not  be  necessary  to  entitle  an  affidavit  or  deposi 
tion  in  the  action,  whether  taken  before  or  after  indictment  or  upon  an 
appeal;  but  if  made  without  a  title  or  with  an  erroneous  title,  it  shall  be  as 
valid  and  effectual  for  every  purpose  as  if  it  were  duly  entitled,  if  it  intel 
ligibly  refer  to  the  proceeding,  indictment  or  appeal,  in  which  it  is  made. 


CHAPTER    XXXIV. 

EREOES  AND  MISTAKES  IN  PLEADINGS  AND 
OTHEE  PEOCEEDINGS.' 

320.  SEC.  601.  Neither  a  departure  from  the  form  or  mode  prescribed  by 
this  act  in  respect  to  any  pleadings  or  proceedings,  nor  an  error  or  mistake 
therein  shall  render  the  same  invalid,  unless  it  have  actually  prejudiced  the 
defendant,  or  tendered  to  his  prejudice  in  respect  to  a  substantial  right. 

321.  Abstract  and  immaterial  error  in  insufficient  to  re 
verse  a  judgment,  but  when  error  is  shown,  the  burden  of 
showing  its  immateriality  rests  upon  the  party  in  whose 
favor  it  was  committed.  17  Cal.  176. 


DISPOSAL   OF  TEOPEKTY.  815 

322.  In  criminal  cases  courts  have  no  power  to  affirm  a 
judgment  merely  because  the  judges  think  upon  the  merits 
the  judgment  is  right.     If  there  be  error  in  the  proceed 
ings  it  is  presumed  to  be  injurious  to  the  prisoner,  and  gen 
erally  he  is  entitled  to  a  reversal,  having  a  constitutional 
right  to  stand  upon  strict  law.     18  Gal.  187. 

323.  It  is  discretionary  with  the  court  to  permit  the  jury 
to  make  this  "view "and  possibly  the  court  would  grant 
the  prisoner  the  same  right.     18  Cal.  187. 

324.  A  mistake  by  the  judge  in  stating  the  testimony  to 
the  jury  on  a  trial  for  murder  is  not  a  sufficient  ground  for 
setting  aside  a  verdict  finding  defendant  guilty  of  man 
slaughter,  where   the  character  of  the  mistake  renders  it 
improbable  that  the  verdict  was  influenced  thereby.     20 
Cal.  432. 

325.  It  is  error  for  the  judge  in  stating  the  testimony  to 
the  jury,  to  read  a  memorandum  of  testimony  taken  by  an 
other  person  instead  of  using  his  own  minutes,  or  making 
the  statement  from  recollection.     20  Cal.  432. 


CHAPTER   XXXV. 

DISPOSAL   OF  PROPERTY,   STOLEN   OR   EMBEZ 
ZLED. 

326.  SEC.  602.  When  property  alleged  to  have  been  stolen  or  embezzled 
shall  come  into  the  custody  of  a  peace  officer,  he  shall  hold  the  same  sub 
ject  to  the  order  of  the  magistrate  authorized  by  the  next  section  to  direct 
the  disposal  thereof.  , 

327.  SEC.  603.  On  satisfactory  proof  of  the  title  of  the  owner  of  the  prop 
erty,  the  magistrate  to  whom  the  information  is  laid,  or  who  shall  examine 
the  charge  against  the  person  accused  of  stealing  or  embezzling  the  property, 
may  order  it  to  be  delivered  to  the  owner,  on  his  paying  the  reasonable  and 
necessary  expenses  incurred  in  its  preservation,  to  be  certified  by  the  magis 
trate.     The  order  shall  entitle  the  owner  to  demand  and  receive  the  property. 

328.  SEC.  604.  If  the  property  stolen  or  embezzled  come  into  the  custody 
of  the  magistrate  it  shall  be  delivered  to  the  owner  on  satisfactory  proof  of 
his  title,  and  on  his  paying  the  necessary  expenses  incurred  in  its  preserva 
tion,  to  be  certified  by  the  magistrate. 

329.  SEC.  G05.  If  the  property  stolen  or  embezzled  have  not  been  deliv 
ered  to  the  owner,  the  court  before  which  a  conviction  is  held  for  stealing  or 
embezzling,  may,  on  proof  of  his  title,  order  it  to  be  restored  to  the  owner. 

330.  SEC.  606.  If  the  property  stolen  or  embezzled  be  not  claimed  by  the 
owner,  before  the  expiration  of  six  months  from  the  conviction  of  a  person 


816  JUSTICES'  TEEATISE. 

for  stealing  or  embezzling  it,  the  magistrate  or  other  officer  having  it  in  cus 
tody,  shall,  on  the  payment  of  the  necessary  expenses  incurred  for  its  preser 
vation,  deliver  it  to  the  county  treasurer,  by  whom  it  shall  be  sold,  and  the 
proceeds  paid  into  the  county  treasury. 

331.  SEC.  607.  When  money  or  such  other  property  is  taken  from  a 
defendant  arrested  upon  a  charge  of  a  public  offense,  the  officer  taking  it 
shall  at  the  time  give  duplicate  receipts  therefor,  specifying  particularly  the 
amount  of  money  and  the  kind  of  property  taken;  one  of  which  receipts  he 
shall  deliver  to  the  defendant,  and  the  other  of  which  he  shall  forthwith  file 
with  the  clerk  of  the  court,  to  which  the  depositions  and  statement  must  be 
sent,  as  provided  by  section  one  hundred  and  seventy-six. 


CHAPTER   XXXVI. 

OF   PROCEEDINGS    IN   JUSTICES',   RECORDERS', 
AND  MAYORS'  COURTS. 

332.  SEC.  608.   All  proceedings  and  actions  before  a  justice's,  recorder's 
or  mayor's  court,  for  a  public  offense,  of  which  said  courts  have  jurisdic 
tion,  shall  be  commenced  by  complaint  setting  forth  the  offense  charged, 
with  such  particulars  of  time,  place,  person  and  property,  as  to  enable  the 
defendant  to  understand  distinctly  the  character  of  the  offense  complained 
of,  and  to  answer  the  complaint. 

333.  The  object  of  pleading  is  to  apprise  a  party  of  the 
precise  charge  made  against  him  and  to  enable  him  to  de 
fend  himself  and  to  avail  himself  of  all  his  legal  rights  and 
privileges.     (Criminal  case.)     12  CaL  294. 

334.  Murder  is  a  conclusion  drawn  by  the  law  from  cer 
tain  facts,  and  in  order  to  determine  whether  it  has  been 
committed  it  is  necessary  that  the  facts  should  be  stated 
with  convenient  certainty.     6  CaL  209.     The  allegation  in 
an  indictment  of  a  legal  conclusion  instead  of  the   facts 
which  are  the  predicate  of  a  conclusion  is  not  sufficient. 
6  CaL  209. 

335.  SEC.  609.  "When  the  complaint  is  laid  before  the  justice,  mayor  or 
recorder,  of  the  commission  of  a  public  offense,  of  which  the  courts  held  by 
them  have  jurisdiction,  he  must  examine  on  oath  the  complainant  or  prose 
cutor  and  any  witness  he  may  produce,  and  take  their  depositions  in  writing 
and  cause  them  to  be  subscribed  by  the  parties  making  them. 

336.  SEC.  610.   If  the  justice,  mayor  or  recorder,  as  the  case  maybe,  be 
satisfied  therefrom  that  the  offense  complained  of  has  been  committed,  he 
shall  issue  a  warrant  of  arrest,  which  shall  be  substantially  in  the  following 
form  : 

County  of 

The  people  of  the  state  of    ....   to  any  sheriff,  constable,   marshal  or 


JUSTICES',  RECOKDEKS'  AND  MAYORS'  COURTS.    817 

policeman  in  this  state :    Complaint  upon  oath  having  been  this  day  made 
before  me  [justice  of  the  peace,  mayor  or  recorder,  as  the  case  may  be],  by 

,  that  the  offense  of  [designating  it  generally],  has  been  committed, 

and  accusing thereof,  you  are  therefore  commanded  forthwith  to 

arrest  the  above-named and  bring  him  before  me  forthwith  at 

[naming  the  place]. 

Witness  my  hand  and  seal  at ,  this day  of ,  A.D.  18. . 


337.  SEC.  611.  On  being  arrested,  the  defendant  may  plead  to  the  com 
plaint  or  he  may  answer  and  deny  the  same.  Such  plea,  answer  or  denial, 
may  be  oral  or  in  writing,  and  immediately  thereafter  the  case  shall  be  tried, 
unless  for  good  cause  shown  an  adjournment  or  change  of  venue  shall  be 
granted.  If  an  adjournment  or  change  of  venue  be  granted  the  defendant 
may  be  held  to  bail.  If  the  defendant  at  any  time  before  the  trial  apply  for 
a  change  of  the  place  of  trial,  and  make  it  appear  by  affidavit  that  he  has 
reason  to  believe  and  does  believe  that  he  cannot  have  a  fair  and  impartial 
trial  before  the  justice  about  to  try  the  cause,  by  reason  of  prejudice  or  bias 
of  such  justice,  the  cause  shall  be  transferred  to  another  justice  of  the  same 
or  a  neighboring  township  for  trial.  It  shall  Toe  the  duty  of  the  justice  order 
ing  the  change  to  require  the  defendant  to  appear  before  the  justice  to  whom 
the  transfer  is  made  on  a  day  named  for  trial,  also  all  witnesses,  and  to 
transmit  to  such  justice  a  certified  transcript  of  his  docket  and  all  original 
papers  in  the  cause.  Should  the  defendant  show  to  the  satisfaction  of  the 
justice,  by  his  own  affidavit  or  otherwise,  that  he  cannot  have  a  fair  and 
impartial  trial  by  reason  of  the  prejudice  of  the  citizens  of  the  township,  the 
cause  shall  be  transferred  to  a  justice  of  a  neighboring  township :  provided, 
if  it  appear  by  the  defendant's  affidavit  that  the  same  prejudice  exists  in  any 
other  township  or  townships,  the  cause  shall  be  transferred  to  some  town 
ship  where  no  such  prejudice  exists. 

338.  Affidavits  for  continuance   should   show  that  the 
facts  expected  to  be  proved  by  the  absent  witnesses  cannot 
otherwise  be  proved  (so  held  in  a  murder  case).     8  Cal.  89. 

339.  In  criminal  cases,  on  a  motion  for  continuance  by 
defendant  on  the  ground  of  the  absence  of  a  material  wit 
ness,  based  on  an  affidavit,  sufficient  in  all  particulars,  and 
the  materiality  of  the  evidence  being  properly  shown,  it  is 
the   duty  of  the  court  in  the  absence  of  evidence  tending 
to  discredit   or  throw  suspicion  upon   the  application  to 
postpone    the    cause    to    afford  the    prisoner  reasonable 
time  to  procure  the  attendance  of  his  witness.     It  is  not 
sufficient  that  the  district  attomey  agrees  that  the  witness 
would  depose  to  certain  facts  if  present;  he  should  admit 
the  truth  of  these  facts  absolutely.     It  is  the  right  of  the 
accused   to  have  his  witnesses  orally  examined   in   court, 
and  this  right  cannot  be  frittered  away  by  compellirg  him 

103 


818  JUSTICES'  TREATISE. 

to  go  to  trial  in  their  absence  without  the  benefit  of  their 
testimony,  upon  a  statement  of  what  that  evidence  would 
be,  subject  to  impeachment.  The  value  of  oral  testimony, 
over  all  other,  is  too  well  understood  to  suppose  that  such 
declarations  would  have  the  same  weight  on  the  minds  of 
the  jury  as  the  testimony  of  the  witness  upon  an  examina 
tion  before  them  in  open  court.  The  prisoner  would  lose 
another  important  advantage — that  of  confronting  his  wit 
ness  with  those  called  to  impeach  him,  and  the  jury  would 
be  better  able  to  arrive  at  the  truth  from  a  personal  ob 
servation  of  the  manner  of  each  while  testifying.  6  Cal. 
249,  250. 

340.  SEC.  612.  The  defendant  must  in  all  cases  be  personally  present 
before  the  trial  shall  proceed. 

341.  SEC.  613.  A  docket  shall  be  kept  by  the  justice,  mayor  or  recorder, 
or  in  the  recorder's  court,  by  the  clerk  of  the  court,  if   there  be  one,  in 
which  he  shall  enter  each  action  and  the  minutes  of  the  proceedings  of  the 
court  therein. 

342.  The  record  of   a  conviction  by  an  inferior  court 
must  show,  in  order  to  protect  the  justice  from  liability  to 
a  person  imprisoned  pursuant  to  such  conviction,  that  the 
case  was  within  the  limits  of   his  jurisdiction.     2   Gray. 
(Mass.)  120. 

343.  SEC.  614.  The  defendant  shall  be  entitled,  if  demanded  by  him,  to 
a  jury  trial.     The  formation  of  the  juries  is  provided  for  by  special  statute. 

344.  SEC.  615.  The  same  challenges  may  be  taken  by  either  party  to  the 
panel  of  jurors,  or  to  any  individual  juror,  as  may  be  taken  on  the  trial  of 
an  indictment  for  a  misdemeanor;    but  the  challenge  shall  in  all  cases  be 
tried  by  the  court. 

345.  SEC.  616.  The  court  shall  administer  to  the  jury  the  following  oath 
or  affirmation:  "You  do  swear  [or  affirm,  as  the  case  may  be]  that  you  will 
well  and  truly  try  this  issue  between  the  people  of  the  State  of  California 
and  . . . .,  the  defendant,  and  a  true  verdict  give  according  to  the  evidence." 

346.  SEC.  617.  After  the  jury  are  sworn,  they  must  sit  together  and  hear 
the  proofs  and  allegations  of  the  parties,  which  must  be  delivered  in  public 
and  in  the  presence  of  the  defendant. 

347.  If  one  or  more  jurors  in  a  criminal  trial  separate 
without  leave  of  the  court,  so  that  such  juror  might  have 
been  improperly  influenced  by  others,  the  verdict  will   be 
set  aside.     5  Cal.  275.     A  juror  has  no  right  to  separate 
from    others  without   the   permission   of    the   court,   even 
though  the  defendant's  counsel  consented  to  it.     Neither 
can  the  affidavit  of  the  juror  thus  absenting  himself  be  ad- 


JUSTICES',  BECOKDERS'  AND  MAYORS'  COURTS.         819 

mitted  to  purge  liis  conduct  from  the  imputation  of  cor 
ruption  or  impropriety;  for  if  a  party  had  been  guilty  of 
any  corruption  he  would  not  hesitate  to  conceal  the  same 
by  direct  perjury.  5  Col.  276,  277. 

348.  SEC.  618.  The  court  shall  decide  all  questions  of  law  -which  may 
arise  in  the  course  of  the  trial;  but  shall  give  no  charge  with  respect  to 
matters  of  fact. 

349.  In  criminal  cases,  it  is  fatal  error  to  give  oral  in 
structions  to  the  jury  without  consent  of  defendant,  whether 
in  the   first  instance  or  after  the  jury  has  returned  into 
court  for  further  instructions.     14  Col.  437. 

350.  It  is  important  to  defendants  in  criminal  cases  that 
the  principles  of  law  which  they  invoke  in  their   defense 
should  be  stated  to  the  jury  in  clear  and  explicit  terms,  so 
that  they  may  not  be  misunderstood.     An  instruction  may 
be  given  in  substance  in  language  so  different  from  that  in 
which  it  was  asked,  as  to  be  very  difficult  of  comprehen 
sion,  and  it  is  always  safer  to  repeat  the  instruction  than 
risk  misleading  the  jury  by  the  refusal  of  one  which  is 
proper  and  pertinent.     At  any  rate,  if  an  instruction  is  re 
fused  for  the  reason  that  it  has  already  been  given,  the 
reason  of  the  refusal  should  be  stated.     13  Cal.  172,  173. 

351.  Evidence  of  character  can  only  be  considered  in  re 
lation  to  the  particular  crime  charged,  in  cases  where  the 
guilt  of  the  accused  is  doubtful.     6  Cal.  214.     It  is  the  duty 
and  province  of  the  jury  to  draw  the  inference  of  express 
malice  from  the  facts  and  circumstances  of  the  case,  and  the 
court  has  no  right  to  instruct  the  jury  that  there  was  no 
malice.     6  Cal.  217. 

352.  SEC.  619.  After  hearing  the  proofs  and  allegations,  the  jury  may 
decide  in  court,  or  may  retire  for  consideration.    If  they  do  not  immediately 
agree,  an  officer  must  be  sworn  to  the  following  effect:    "You  do  swear  that 
you  will  keep  this  jury  together,  in  some  quiet  and  convenient  place;  that 
you  will  not  permit  any  person  to  speak  to  them,  nor  speak  to  them  your 
self,  unless  it  be  to  ask  them  whether  they  have  agreed  upon  a  verdict;  and 
that  you  will  return  them  into  court  when  he  [they]  have  so  agreed." 

353.  SEC.  620.  The  verdict  of  the  jury  shall  in  all  cases  be  general. 

354.  SEC.  621.  "When  the  jury  have  agreed  upon  their  verdict  they  shall 
deliver  it  publicly  to  the  court,  who  shall  cause  the  same  to  be  entered  on 
the  minutes. 

355.  SEC.  622.  When  several  defendants  are  tried  together,  if  the  jury 
cannot  agree  upon  a  verdict  as  to  all,  they  may  render  a  verdict  as  to  those 


820  JUSTICES'  TREATISE. 

in  regard  to  whom  they  do  agree,  on  which  a  judgment  shall  be  entered  ac 
cordingly,  and  the  case  as  to  the  rest  may  be  tried  by  another  jury. 

356.  SEC.  623.  The  jury  shall  not  be  discharged  after  the  cause  is  sub 
mitted  to  them,  until  they  have  agreed  upon  and  rendered  their  verdict,  un 
less  for  good  cause  the  court  sooner  discharge  them. 

357.  SEC.  624.  If  the  jury  be  discharged,  as  provided  in  the  last  section, 
the  court  may  proceed  again  to  the  trial,  in  the  same  manner  as  upon  the 
first  trial;  and  so  on,  until  a  verdict  be  rendered. 

358.  SEC.  625.  "When  the  defendant  pleads  guilty,  or  is  convicted,  either 
by  the  court  or  by  a  jury,  the  court  shall  render  judgment  thereon  of  fine  and 
imprisonment,  or  both,  as  the  case  may  require. 

359.  SEC.  626.  A  judgment  that  the  defendant  pay  a  fine,  may  also  direct 
that  he  be  imprisoned  until  the  fine  be  paid  or  satisfied. 

360.  SEC.  627.   When  the  defendant  is  acquitted  either  by  the  court  or  by 
the  jury,  he  shall  be  immediately  discharged,  and  if  the  court  certify  in  the 
minutes  that  the  prosecution  was  malicious,  or  without  probable  cause,  it 
may  order  the  prosecutor  to  pay  the  costs  of  the  action,  or  to  give  satisfac 
tory  security,  by  a  written  undertaking,  with  one  or  more  sureties,  to  pay  the 
same  to  the  county  within  thirty  days  after  the  trial. 

361.  SEC.  628.  If  the  prosecutor  does  not  pay  the  costs,  or  give  security 
therefor,   as  provided  in  the  last  section,  the  court  may   enter  judgment 
against  him  for  the  amount  thereof,  which  may  be  enforced  in  all  respects  in 
the  same  manner  as  a  judgment  rendered  in  a  civil  action. 

362.  SEC.  229.     When  a  verdict  is  rendered,   it  shall  be  immediately 
entered  upon  the  minutes. 

363.  SEC.    630.     After  a  plea  or  verdict    of  guilty,    or  after  a  verdict 
against  the  defendant,  on  a  plea  of  a  former  conviction  or  acquittal,  the 
court  shall  appoint  a  time  for  rendering  judgment,  which  shall  not  be  more 
than  two  days  or  less  than  six  hours  after  the  verdict  is  rendered,  and  shall 
hold  the  defendant  to  bail  to  appear  for  judgment,  and  in  default  of  bail  he 
shall  be  committed. 

364.  SEC.  631.  At  any  time  before  the  judgment  is  entered,  the  defend 
ant  may  move  for  a  new  trial,  or  in  arrest  of  judgment. 

365.  SEC.  632.  A  new  trial  can  be  granted  only  in  the  following  cases: 
1st.  When  the  trial  has  been  had  in  his  absence;  provided,  if  he  shallvolun- 
tarily  absent  himself  with  full  knowledge  that  a  trial  is  being  had,  a  new  trial 
shall  not  be  granted  on  account  of  such  voluntary  absence ;  2d.  When  the  jury 
has  received  any  evidence  out  of  court ;  3d.  When  the  jury  have  separated  with 
out  leave  of  the  court,  after  having  retired  to  deliberate  upon  their  verdict,  or 
been  guilty  of  any  misconduct  tending  to  prevent  a  fair  and  due  consideration 
of  the  case;  4th.  When  the  verdict  has  been  decided  by  lot,  or  by  any  means 
other  than  a  fair  expression  of  opinion  on  the  part  of  all  the  jurors;  5th. 
When  there  has  been  error  in  the  decision  of  the  court  given  on  any  ques 
tion  of  law  arising  during  the  course  of  the  trial;  6th.  When  the  verdict  is 
contrary  to  law  or  evidence ;  7th.  When  new  evidence  is  discovered  material 
to  the  defendant,  and  which  he  could  not,  with  reasonable  diligence,  have 
discovered  and  produced  at  the  trial ;  but  when  a  motion  for  a  new  trial  is 
made  upon  this  ground,  the  defendant  must  produce  at  the  hearing  the  affi 
davits  of  the  witnesses  by  whom  such  newly-discovered  evidence  is  expected 
to  be  given. 


JUSTICES',  RECORDERS'  AND  MAYORS'  COURTS.         821 

366.  It  is  with  reluctance  that  courts  disturb  the  verdict 
of  a  jury  in  any  case;  but  where  there  is  no  substantial 
contradiction  in  the  evidence  of  the  different  witnesses,  and 
taking  the  testimony  for  the  prosecution  alone  and  leaving 
out  that  of  the  defense,  no  ground  appears  upon  which  the 
verdict  could  stand,  and  it  is  manifest  that  the  verdict  must 
have  been  given  under  a  state  of  great  excitement  prevent 
ing  a  fair  and  just  trial,  the  court  should  grant  a  new  trial. 
(Criminal  case),  10  Cal.  196. 

367.  SEC.  633.  The  motion  in  arrest  of  judgment  maybe  founded  on 
any  substantial  defect  in  the  complaint,  and  the  effect  of  an  arrest  of  judg 
ment  is  to  place  the  defendant  in  the  same  situation  in  which  he  was  before 
the  trial  was  had. 

368.  SEC.  634.  If  the  judgment  be  not  arrested  or  a  new  trial  granted, 
judgment  shall  be  pronounced  at  the  time  appointed,  and  entered  in  the 
minutes  of  the  court. 

359.  SEC.  635.  If  judgment  of  acquittal  be  given  or  judgment  imposing 
a  fine  only,  and  the  defendant  be  not  detained  for  any  other  legal  cause,  he 
must  be  discharged  as  soon  as  the  judgment  is  given. 

370.  SEC.  G36.  When  a  judgment  of  imprisonment  is  entered,  a  certified 
copy  thereof  shall  be  delivered  to  the  sheriff,  marshal  or  other  officer,  which 
shall  be  a  sufficient  warrant  for  the  execution  of  the  same. 

371.  SEC.  337.  When  a  judgment  is  entered  imposing  a  fine  or  ordering 
the  defendant  to  be  imprisoned  until  the  fine  shall  be  paid,  he  shall  be  held 
in  custody  during  the  time  specified  in  the  judgment  unless  the  fine  be 
sooner  paid. 

372.  A  judgment  in  a  criminal  action  that  the  defendant 
be  imprisoned  for  a  specified  term,  "to  commence  at  the 
expiration  of  previous  sentences,"  is  valid  and  warrants  the 
detention  of  the  defendant  for  the  aggregated  period  of  all 
the  sentences.     22  Cal.  135. 

373.  Judgments  of  inferior  criminal  courts  created  by 
statute  are  not  required  to  be  of  any  different  form  from 
those  of  criminal  courts  of  general  jurisdiction.     22  Cal. 
135. 

374.  SEC.  638.  Upon  the  payment  of  the  fine  the  officer  shall  immedi 
ately  discharge  the  defendant,  if  he  be  not  detained  for  any  other  legal 
cause,  and  apply  the  money  to  the  payment  of  the  expenses  of  the  prosecu 
tion,  and  pay  over  the  residue,  if  any,  within  ten  days  to  the  county  or  city 
treasurer,  according  as  the  offense  is  prosecuted  in  a  justice's  or  in  a  mayor's 
or  recorder's  court. 

375.  SEC.  639.  If  a  fine  be  imposed  and  paid  before  commitment  it  shall 
be  applied  as  prescribed  in  the  preceding  section. 

376.  SEC.  640.  If  a  defendant  be  discharged  on  bail  or  has  deposited 
money  instead  thereof,  and  fails  to  appear  according  to  his  recognizance, 


822  JUSTICES'  TEEATISE. 

the  same  shall  be  forfeited  or  the  money  appropriated  in  like  manner  as  in 
the  district  court. 

377.  SEC.  641.  In  case  of  failure  to  appear  for  judgment,  the  court 
shall  issue  a  warrant  for  the  arrest  of  the  defendant,  and  shall  enter  judg 
ment  whenever  the  defendant  appears  or  is  brought  before  it. 


CHAPTER     XXXVII. 
OF  SEARCH-WARRANTS. 

378.  SEC.  642.   A  search-warrant  is  an  order  in  writing  in  the  name  of 
the  people  of  the  state  of  California,  signed  by  a  magistrate  directed  to  a 
peace-officer  commanding  him  to  search  for  personal  property  and  bring  it 
before  the  magistrate. 

379.  SEC.  643.   It  may  be  issued  whenever  property  has  been  stolen  or 
embezzled,  in  which  case  it  may  be  taken  on  the  warrant  from  any  house  or 
other  place  in  which  it  is  concealed,  or  from  the  possession  of  the  person  by 
whom  it  was  stolen  or  embezzled  or  of  any  other  person  in  whose  possession 
it  may  be. 

380.  SEC.  644.    No  search-warrant  shall  be  issued  but  upon  probable 
cause,  supported  by  affidavit  naming  or  describing  the  person,  and  particu 
larly  describing  the  property  and  place  to  be  searched. 

381.  SEC.  645.   The  magistrate  must  before  issuing  the  warrant  examine 
on  oath  the  complainant  and  any  witnesses  he  may  produce,  and  take  their 
depositions  in  writing  and  cause  them  to  be  subscribed  by  the  parties  making 
them. 

382.  SEC.  646.  The  depositions  must  set  forth  the  facts  tending  to  estab 
lish  the  grounds  of  the  application  or  probable  cause  for  believing  that  they 
exist. 

383.  SEC.  647.    If  the  magistrate  be  satisfied  of  the  existence  of  the 
grounds  of  the  application  or  that  there  is  probable  cause  to  believe  their 
existence,  he  shall  issue  a  search-warrant,  signed  by  him  with  his  name  of 
office,  to  a  peace-officer  in  his  county  commanding  him  forthwith  to  search 
the  person  or  place  named  for  the  property  specified  and  to  bring  it  before 
the  magistrate. 

384.  SEC.  648.  The  warrant  shall  be  in  substantially  the  following  form: 
County  of 

The  people  of  the  state  of  California  to  any  sheriff,  constable,  marshal  or 

policeman  in  the  county  of  . . . . : 

Proof  by  affidavit  having  been  this  day  made  before  me  by  [naming  every 
person  whose  affidavit  has  been  taken]  that  [stating  the  grounds  of  the  ap 
plication  according  to  section  six  hundred  and  forty-four,  or  if  the  affidavit 
be  not  positive  that  there  is  probable  cause  for  believing  that  [stating  the 
ground  of  the  application  in  the  same  manner],  you  are  therefore  com 
manded  in  the  day-time  [or  at  any  time  of  the  day  or  night  as  the  case  may 
be,  according  to  section  six  hundred  and  fifty-four]  to  made  immediate  search 

on  the  person  of [or,  "  in  the  house  situated  ....,"  describing  it, 

or  any  other  place  to  be  searched  with  reasonable  particularity  as  the  case 


SEARCH-WARRANTS.  823 

may  be],  for  the  following  property  [describing  it  with  reasonable  particu 
larity],  and  if  you  finti  the  same  or  any  part  thereof,  to  bring  it  forthwith 
before  me  at  [stating  the  place]. 

Given  under  my  hand  and  dated  this day  of ,  A.D,  18. . 


Justice  of  the  peace  [or  as  the  case  maybe]. 

385.  SEC.  649.  A  search-warrant  may  in  all  cases  be  served  by  any  of  the 
officers  mentioned  in  its  directions,  but  by  no  other  person  except  in  aid  of 
the  officer  on  his  requiring  it,  he  being  present  and  acting  in  its  execution. 

386.  SEC.  650.  The  officer  may  break  open  any  outer  or  inner  door  or 
window  of  a  house  or  any  part  of  a  house  or  anything  therein  to  execute  the 
warrant,  if  after  notice  of  his  authority  and  purpose  he  be  refused  admit 
tance. 

387.  SEC.  651.  He  may  break  open  any  outer  or  inner  door  or  window  of 
a  house  for  the  purpose  of  liberating  a  person  who  having  entered  to  aid  him 
in  the  execution  of  the  warrant  is  detained  therein,  or  when  necessary  for 
his  own  liberation. 

388.  SEC.  652.    The  magistrate  must  insert  a  direction  in  the  warrant 
that  it  be  served  in  the  day-time,  unless  the  affidavits  be  positive  that  the 
property  is  on  the  person  or  in  the  place  to  be  searched,  in  which  case  he 
may  insert  a  direction  that  it  be  served  at  any  time  of  the  day  or  night. 

389.  SEC.  653.   A  search-warrant  must  be  executed  and  returned  to  the 
magistrate  who  issued  it  within  five  days  after  its  date,  and  if  in  any  other 
county  within  thirty  days ;  after  the  expiration  of  these  times,  respectively, 
the  warrant  shall  unless  executed  be  void. 

390.  SEC.  654.  When  the  officer  shall  have  taken  any  property  under  the 
warrant  he  must  give  a  receipt  for  the  property  taken  [specifying  it  in  detail] 
to  the  person  from  whom  it  was  taken  by  him  or  in  whose  possession  it  was 
found ;  or  in  the  absence  of  any  person  he  shall  leave  it  in  the  place  where 
he  found  the  property. 

391.  SEC.  655.  When  the  property  is  delivered  to  the  magistrate  he  shall, 
if  it  was  stolen  or  embezzled,  dispose  of  it  as  provided  in  sections  six  hun 
dred  and  three  to  six  hundred  and  seven,  both  inclusive. 

392.  SEC.  656.   The   officer  shall  forthwith  return  the  warrant  to  the 
magistrate  and  at  the  same  time  deliver  to  him  a  written  inventory  of  the 
property  taken,  made  publicly  or  in  the  presence  of  the  person  from  whose 
possession  it  was  taken  and  of  the  applicant  for  the  warrant,  if  they  be  pres 
ent,  verified  by  the  affidavit  of  the  officer  at  the  foot  of  the  inventory  and 
taken  before  the  magistrate  at  the  time,  to  the  following  effect: 

"I, ,  the  officer  by  whom  the  annexed  warrant  was  executed,  do 

swear  that  the  above  inventory  contains  a  true  and  detailed  account  of  all  the 
property  taken  by  me  on  the  warrant." 

393.  SEC.  657.  The  magistrate  shall  thereupon,  if  required,  deliver  a 
copy  of  the  inventory  to  the  person  from  whose  possession  the  property  was 
taken,  and  to  the  applicant  for  the  warrant. 

394.  SEC.  658.  If  the  grounds  on  which  the  warrant  was  issued  be  con 
troverted,  he  must  proceed  t«  take  testimony  in  relation  thereto. 

395.  SEC.  659.  The  testimony  given  by  each  witness  must  be  reduced  to 
writing,  and  certified  by  the  magistrate. 


824  JUSTICES'  TREATISE. 

396.  SEC.  660.  If  it  appear  that  the  property  taken  is  not  the  same  as 
that  described  in  the  -warrant  or  that  there  is  no  probable  cause  for  believing 
the  existence  of  the  grounds  on  which  the  warrant  was  issued,  the  magis 
trate  shall  cause  it  to  be  restored  to  the  person  from  whom  it  was  taken. 

397.  SEC.  661.  The  magistrate  shall  annex  together  the  depositions,  the 
search-warrant  and  return  and  the  inventory,  and  return  them  to  the  next 
term  of  the  court  of  sessions,  having  power  to  inquire  into  the  offenses  in 
respect  to  which  the  search-warrant  was  issued,  at  or  before  its  opening  on 
the  first  day. 

398.  SEC.  662.  Whoever  shall  maliciously  and  without  probable  cause 
procure  a  search-warrant  to  be  issued  and  executed  shall  be  deemed  guilty 
of  a  misdemeanor,  and  on  conviction  thereof  shall  be  fined  in  a  sum  not 
exceeding  five  thousand  dollars,  or  imprisonment  not  more  than  six  months. 

399.  SEC.  663.  A  peace-officer  who  in  executing  a  search  warrant  shall 
willfully  exceed  his  authority  or  exercise  it  with  unnecessary  severity,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  punished  as  in  the  next  preceding 
section  is  provided. 

400.  SEC.  664.  When  a  person  charged  with  a  felony  is  supposed  by  the 
magistrate  before  whom  he  is  brought  to  have  on  his  person  a  dangerous 
weapon  or  anything  which  may  be  used  in  evidence  of  the  commission  of 
the  offense,  the  magistrate  may  direct  him  to  be  searched  in  his  presence, 
and  the  weapon  or  other  thing  to  be  retained,  subject  to  his  order  or  to  the 
order  of  the  court  in  which  the  defendant  may  be  tried. 


CHAPTER   XXXVIII. 

OF    PROCEEDINGS    AGAINST    FUGITIVES   FROM 

JUSTICE. 

401.  SEC.  665.  A  person  charged  in  any  state  or  territory  of  the  United 
States  with  treason,  felony  or  .other  crime^  who  shall  flee  from  justice,  and 
be  found  in  this  state,  shall  on  demand  of  the  executive  authority  of  the 
state  or  territory  from  which  he  fled  be  delivered  up  by  the  governor  of  this 
state,  to  be  removed  to  the  state  having  jurisdiction  of  the  crime. 

402.  It  is  not  necessary  that  where  a  party  is  arrested 
as  a  fugitive  from  justice,  escaped  from  another  state,  that 
the  affidavit  upon  which  the  requisition  issued  should  set 
forth  the  crime  charged  with  all  the  legal  exactness  neces 
sary  to  be  observed  in  an  indictment.  If  it  distinctly 
charge  the  commission  of  an  offense  it  is  all  that  is  neces 
sary.  Neither  is  it  necessary  that  the  affidavit  should  state 
that  the  prisoner  is  a  "fugitive  from  justice" — the  allega 
tion  that  he  committed  the  crime  and  then  secretly  fled  is 
sufficient  to  deduce  the  conclusion  that  he  is  a  fugitive  from 
justice.  5  Cal  238,  239. 


FUGITIVES  FBOM  JUSTICE.  825 

403.  SEC.  666.     A  magistrate  may  issue  a  warrant  for  the  apprehension 
of  a  person  so  charged,  who  shall  flee  from  justice  and  be  found  in  this 
state. 

404.  SEC.  C67.  The  proceedings  for  the  arrest  and  commitment  of  the 
person  charged,  shall  be  in  all  respects  similar  to  those  provided  in  this  act 
for  the  arrest  and  commitment  of  a  person  charged  with  a  public  offense  com 
mitted  within  this  state,  except  that  an  exemplified  copy  of  an  indictment 
found,  or  other  judicial  proceeding  had  against  him  in  the  state  or  territory 
in  which  he  is  charged  to  have  committed  the  offense,  may  be  received  as 
evidence  before  the  magistrate. 

405.  SEC.  668.   If    from  the  examination  it   appear  that  the  person 
charged  has  committed  treason,  felony  or  other  crime  charged,  the  magis 
trate  by  wan-ant  reciting  the  accusation,  shall  commit  him  to  the  proper 
custody  within  his  county,  for  a  time  to  be  specified  in  the  warrant,  which 
the  magistrate  may  deem  reasonable  to  enable  the  arrest  of  the  fugitive  un 
der  the  warrant  of   the  executive  of  this  state,  on  the  requisition  of  the 
executive  authority  of  the  state  or  territory  in  which  he  committed  the  of 
fense,  unless  he  give  bail  as  provided  in  the  next  section  or  until  he  be 
legally  discharged. 

406.  SEC.  669.  The  magistrate  may  admit  the  person  arrested  to  bail  by 
recognizance  with  sufficient  securities,  and  in  such  sum  as  he  may  deem 
proper  for  his  appearance  before  him  at  a  time  specified  in  the  recognizance, 
and  for  his  surrender  to  be  arrested  upon  the  warrant  of  the  governor  of 
this  state. 

407.  SEC.  670.  Immediately  upon  the  arrest  of  the  person  charged,  the 
magistrate  shall  give  notice  to  the  district^  attorney  of  the  county  of  the 
name  of  the  person,  and  the  cause  of  the  arrest. 

408.  SEC.  671.  The  district  attorney  shall  immediately  thereafter  give 
notice  to  the  executive  authority  of  the  state  or  territory,  or  to  the  pros 
ecuting  attorney  or  presiding  judge  of  the  criminal  court  of  the  city  or 
county  within  the  state  or  territory  having  jurisdiction  of  the  oflV ; 

the  end  that  a  demand  may  be  made  for  the  arrest  and  surrender  of  the 
person  charged. 

409.  SEC.  672.  The  person  arrested  shall  be  discharged  from  custody  or 
bafl,  unless  before  the  expiration  of  the  time  designated  in  the  warrant  or 
recognizance  he  be  arrested  under  the  warrant  of  the  governor  of  this  state. 

410.  SEC.  673.  The  magistrate  shall  make  return  of  his  proceedings  to 
the  next  court  of  sessions  of  the  county,  which  shall  thereupon  inquire  into 
the  cause  of  the  arrest  and  detention  of  the  person  charged,  and  if  he  be  in 
custody,  or  the  time  for  his  arrest  have  not  elapsed,  the  court  may  discharge 
him  from  detention  or  may  order  his  recognizance  of  bail  to  be  e.uu -.-led,  or 
may  continue  his  detention  for  a  longer  time,  or  may  readmit  him  to  bail, 
to  appear  and  surrender  himself  within  a  time  to  be  specified  in  the  recog 
nizance. 

104 


826  JUSTICES'  TREATISE. 


CHAPTER   XXXIX. 

COMPROMISING   OFFENSES   BY  LEAVE  OF  TEE 

COURT. 

411.  SEC.  675.  When  a  defendant  is  held  to  answer  on  a  charge  of  mis 
demeanor,  for  which  the  person  injured  by  the  act  constituting  the  offense 
has  a  remedy  by  a  civil  action,  the  oifense  may  be  compromised  as  provided 
in  the  next  section,  except  when  it  is  committed:    1st,  By  or   upon  any 
officer  of  justice  while  in  the  execution  of   the  duties  of   his  office;  2d, 
Eiotously ;  3d,  With  an  intent  to  commit  a  felony. 

412.  SEC.  676.  If  the  party  injured  appear  before  the  court  to  which 
the  depositions  are  reqiiired  to  be  returned  at  any  time  before  trial,  and 
acknowledge  in  writing  that  he  has  received  satisfaction  for  the  injury,  the 
court  may  in  its  discretion,  on  payment  of  the  costs  incurred,  order  all  pro 
ceedings  to  be  stayed  upon  the  prosecution  and  the'  defendant  to  be  dis 
charged  therefrom ;  but  in  such  case  the  reasons  for  the  order  must  be  set 
forth  therein  and  entered  on  the  minutes. 

413.  SEC.  677.  The  order  authorized  by  the  last  section  shall  be  a  bar  to 
another  prosecution  for  the  same  offense. 

414.  SEC.  678.  No  public  offense  shall  be  compromised,  nor  shall  any 
proceeding  for  the  prosecution  or  punishment  thereof  upon  a  compromise 
be  stayed,  except  as  provided  in.  this  chapter. 

415.  SEC.  679.  All  fines  and  forfeitures  collected  in  any  court  of  this 
state  shall  be  applied  to  the  payment  of  the  costs  of  the  case  in  which  the 
fine  is  imposed  or  the  forfeiture  incurred,  and  after  such  costs  are  paid  the 
residue  shall  be  paid  to  the  county  treasurer  of  the  county  in  which  the 
court  is  held. 

416.  Fines  imposed  in  the  court  of   the  mayor  or  re 
corder  of  a  city  or  before  any  officer  of  a  municipal  corpo 
ration  having  authority  to  impose  fines,  must  as  a  general 
rule  be  paid  into  the  treasury  of  the  city,  town  or  other 
municipal  corporation,  unless  the  law  specifically  directs 
otherwise.     There  is  no  statute  which  interferes  with  this 
disposition  of  the  fund  arising  from  fines   as  far  as  con 
cerns  the  city  of  Sacramento.     6  Gal.  425. 

417.  SEC.  680.  If  any  clerk,  justice  of  the  peace,   sheriff,  constable  or 
other  officer  who  may  receive  any  fine  or  forfeiture,  shall  refuse  or  neglect  to 
pay  over  the  same  according  to  law,  and  within  thirty  days  after  the  receipt 
thereof,  he  shall  be  liable  upon  his  official  bond  for  the  amount  thereof ,  with 
fifty  per  cent,  damages  and  interest,  to  be  recovered  in  like  manner  as  for 
failing  to  pay  over  money  received  on  execution,  and  shall  be  deemed  guilty 
of  a  misdemeanor,  and  on  conviction,  may  be  fined  in  any  sum  not  exceed 
ing  five  hundred  dollars  or  by  imprisonment  not  exceeding  three  months. 


.  COSTS  IN  CRIMINAL  ACTIONS  AND  PROCEEDINGS.  827 

CHAPTER    XL. 
MISCELLANEOUS  PROVISIONS. 

418.  SEC.  681.  The  term  "  oath  "  where  used  in  this  act  shall  be  deemed 
to  include  an  affirmation. 

419.  SEC.  682.  When  a  signature  of  a  person  is  required  by  this  act,  the 
mark  of  the  person,  if  he  cannot  write,  shall  be  deemed  sufficient,  the  name 
of  the  person  making  the  mark  being  written  near  it,  and  the  mark  being 
witnessed  by  a  person  who  writes  his  own  name  as  a  witness. 

420.  SEC.  683.  When  it  is  necessary  for  any  purpose  to  have  a  person 
who  is  in  prison  in  any  part  of  the  state  brought  before  a  court  of  criminal 
jurisdiction,  an  order  for  that  purpose  may  be  made  by  the  court,  and  the 
order  shall  be  executed  by  the  sheriff  of  the  county  where  it  is  made. 

421.  SEC.  684.  Process  issued  by  a  court  or  magistrate  shall  be  executed 
according  to  its  terms. 

422.  SEC.  685.  The  term  "magistrate  "  when  used  in  this  act  signifies 
any  of  the  officers  mentioned  in  section  one  hundred  and  third. 

423.  SEC.  686.  The  term  "peace-officer"  when  used  in  this  act,  signifies 
any  one  of  the  officers  mentioned  in  section  one  hundred  and  tenth. 


CHAPTER   XLI. 

OF  THE  COSTS  IN  CRIMINAL  ACTIONS  AND  PRO 
CEEDINGS. 

424.  SEC.  687.  The  only  costs  or  fees  allowed  in  a  criminal  action  or 
proceeding  shall  be  such  as  are  prescribed  by  this  act. 

425.  SEC.  688.  The  magistrate  if  he  be  a  justice  of  the  peace,  or  a  mayor, 
or  a  city  recorder,  may  receive  for  all  the  proceedings  before  him,  to  and  in 
cluding  his  decision  upon  the  question  of  discharging  the  defendant  or  hold 
ing  him  to  answer,  three  dollars;  for  taking  bail  after  a  commitment  by 
another  magistrate,  one  dollar. 

426.  SEC.  689.  The  clerk  may  receive  on  the  trial  of  an  issue  where  the 
charge  is  felony,  five  dollars;  on  the  trial  of  an  issue  where  the  charge  is  a 
misdemeanor,  two  dollars;  entering  judgment,  one  dollar.     He  shall  receive 
no  other  fee  for  any  service  whatever  in  a  criminal  action  or  proceeding,  ex 
cept  for  copies  of  papers  at  the  rate  of  thirty  cents  for  every  hundred  words. 

427.  SEC.  690.  A  peace-officer  may  receive  for  making  an  arrest,  two 
dollars,  together  with  twenty  cents  for  every  mile  necessarily  traveled  by  him 
in  rendering  such  service,  and  in  taking  a  defendant  before  a  court  or  magis 
trate,  or  conveying  him  to  prison;  for  serving  a  subpena,  fifty  cents,  together 
with  twenty  cents  for  every  mile  necessarily  traveled  by  him  in  rendering 
such  service.    The  court  of  sessions  may  allow  such  further  compensation 
for  the  service  of  process,  and  for  other  services  in  criminal  cases  as  it  may 
think  reasonable. 

428.  SEC.  691.  The  sheriff  may  also  receive  for  summoning  a  panel  of 


828  JUSTICES'  TREATISE. 

forty-eight  jurors,  twenty  dollars ;  for  summoning  a  panel  of  thirty-six  jurors, 
fifteen  dollars;  for  summoning  a  panel  of  twelve  jurors,  ten  dollars;  for 
executing  a  sentence  of  death,  fifty  dollars.  Each  juror  shall  receive  for 
each  day's  attendance,  two  dollars,  to  be  paid  on  the  certificate  of  the  clerk, 
which  shall  be  issued  during  the  term. 

429.  SEC.  692.  The  district  attorney  shall  receive  on  each  conviction  for 
felony,  when  the  punishment  is  death,  fifty  dollars ;  for  each  conviction  for 
other  felony  twenty-five  dollars ;  on  each  conviction  for  misdemeanor,  the 
sum  of  fifteen  dollars;  which  said  sums  shall  be  assessed  against  the  one 
convicted,  and  if  the  same  cannot  be  collected  from  the  defendant,  then  it 
shall  be  considered  a  county  charge,  and  be  audited  by  the  board  of  super 
visors;  provided,   that  [in]  the   counties  of   San  Joaquin,   Humboldt  and 
Placer,  the  fees  allowed  by  this  act  to  district  attorneys  shall  in  no  event 
become  a  county  charge.     The  district  attorney  shall  receive  ten  per  cent, 
upon  all  collections  upon  forfeited  recognizances. 

430.  SEC.  693.  The  fees  allowed  to  justices  of  the  peace  .and  other  offi 
cers  having  the  jurisdiction  and  authority  of  justices  of  the  peace,  clerks, 
peace-officers  and  district  attorneys  shall,  when  the  defendant  is  convicted, 
be  considered  and  recovered  against  him  as  costs  in  the  suit,  and  be  collected 
in  like  manner  as  costs  in  civil  cases. 

431.  SEC.  694.  The  fees  allowed  a  sheriff  for  summoning  jurors,  jurors' 
fees  and  fees  allowed  magistrates,  peace-officers  and  clerks,  in  cases  where 
the  defendant  is  acquitted,  or  where  being  convicted  he  is  unable  to  pay  the 
costs,  shall  be  county  charges,  and  shall  be  audited  and  paid  in  like  manner 
as  other  charges  against  the  county. 

432.  SEC.  695.   Whenever  any  officer,  except  district  attorneys,  men 
tioned  in  this  act  receives  a  salary,  he  shall  account  for  and  pay  over  to  the 
treasurer  of  the  city  of  which  he  is  an  officer  all  fees  collected  by  him  under 
the  provisions  of  this  act. 

Sec.  695  Cr.  Pr.  expressly  exempting  one  officer  would 
seem  to  imply  very  strongly  that  none  others  were  to  be 
exempted.  13  Gal.  295. 


CHAPTER   XLII. 
SUPPLEMENTAL    ACTS. 

[Sections  one  and  two  contain  the  amendments  to  sections  four  hundred 
and  eighty-one  and  four  hundred  and  eighty-two  of  the  act  of  1851,  therein 
inserted.] 

433.  SEC.  3.  The  appeal  to  the  county  court  from  the  judgment  of  a 
justice's,  recorder's,  mayor's  or  police  judge's  court,  shall  be  heard  upon  a 
statement  of  the  case  settled  by  the  justice,  police  judge,  recorder  or  mayor, 
embodying  the  evidence  and  such  rulings  of  the  court  as  are  excepted  to. 

434.  SEC.  4.  Upon  the  appeal  to  the  county  court,  if   a  new  trial  be 
granted,  such  new  trial  shall  be  had  in  the  county  court.     If  the  judgment 
be  affirmed,  a  copy  of  the  judgment  of  affirmance  shall  be  sent  to  the  court 


SUPPLEMENTAL  ACTS.  829 

below,  upon  the  receipt  of  which  the  court  below  shall  proceed  to  enforce 
its  sentence. 

435.  SEC.  5.  All  appeals  from, a  justice's,  mayor's,  recorder's  or  police 
judge's  court,  remaining  undetermined  and  now  pending  in  any  court  of 
sessions  shall  be  transferred  to  the  county  court  of  the  proper  county,  and 
be  heard  and  determined  by  said    county  court  in  like  manner  as  if  the 
appeal  were  originally  taken  to  the  county  court  under  the  provisions  of 
this  act. 

436.  SEC.  6.  Nothing  in  this  act  contained  shall  apply  to  the  police 
judge's  court  in  the  city  of  San  Francisco,  save  the  provisions  of  section 
one  of  this  act. 


INDEX. 


[This  Index  is  made  in  reference  to  pages  and  sections.  The  sections  indexed  are  the 
sections  of  each  chapter.  In  the  Criminal  Practice  Act  there  will  be  found  two  rows  of 
figures ;  the  outer  figures  represent  the  sections  of  the  book,  the  inner  represent  the 
sections  of  the  statute.] 

PAGE.  IEC9. 

ABATEMENT 194  1-2 

plea  of,  when  to  the  jurisdiction 194  3 

another  action  pending 195  4 

parties  must  be  the  same 195  5-6 

one  suit  in  abatement  of  another 195  7-8 

answer  in,  what  it  must  show 195  9-11 

misnomer 195  12-14 

misjoinder  and  non-rejoinder 196  15-16 

by  death .' 196  17 

ABANDONMENT,  what  constitutes 196  1-2 

ACKNOWLEDGMENTS,  statutes  concerning 197  1-2 

justices  of  the  peace  may  take 199  2-8 

forms  of . . . 200  3 

what  must  state. 201  4 

recorders  may  take 201  .  9 

ACTIONS,  AGAINST  STEAMERS,  VESSELS,  ETC 202 

jurisdiction,  of  courts  concerning 202  1 

what  vessels  are  liable  to 203  2 

contract  of  voyage  in  vessels,  jurisdiction  of 203  3 

may  be  brought  directly  against 204  4 

complaint  in 204  5 

service  of  summons  in 204  6-7 

lien,  when  it  attaches 204  8 

attachment,  when  it  may  issue 205  9 

undertaking 205  10 

contents  of  writ  of  attachment 205  11 

duty  of  constable  when  writ  is  delivered 206  12 

who  may  appear  and  answer 206  13 

•proceedings  in,  how  conducted 206  14 

discharge  of  attachment  after  appearance 206  15 

sale  under  execution,  how  made 207  16 

claims  for  wages 207  17-18 

notice  of  sale,  what  it  must  contain 208  19 

appeals,  who  may  take % ....  208  20 


832 


INDEX. 


PAGE.  SEC8. 

AD JOURNMENT,  discretionary  with  court 209  1 

by  consent. . . .'. 209  2-4 

for  a  period  not  exceeding  ten  days 209  5-7 

not  exceeding  four  months 210  8 

grounds  for  adjournment 211  9-11 

affidavit  for 211  12 

form  of 212  13 

undertaking  for,  for  four  mouths 213  14 

for  of  undertaking 213  15 

when  jury  trial  is  demanded 213  1C 

justice  may  adjourn  when  jury  has  been  summoned 213  17-19 

when  justice  is  officially  occupied 214  20 

justice  may  order  case  to  stand  open  for  trial 214  .  21-22 

cannot  open  a  case  after  day  of  trial  has  passed  214  23 

cannot  hold  a  case  open  when  there  is  no  issue 214  24 

when  a  jury  is  being  summoned 215  25-27 

waiver  of  irregularity  in 215  28-29 

APPEALS,  how  taken 218  1 

distinct  classes  of 218  2 

on  questions  of  law,  how  tried 219  3 

in  what  time  to  be  taken 219  4 

when  appellant  dies  on  same  day 219  5 

from  judgment  by  default , „    220  6-7 

from  judgment  of  non-suit 220  8 

one  of  several  defendants  may  appeal 220  9-10 

absence  of  justice  during  the  time  in  which  appeal  can  be 

taken 220  11 

written  agreement  to  abide  decision  of  justice 220  12 

notice  of 221  13-19 

statement  on 222  20-23 

justice  must  transmit  transcript 223  24 

a  justice  not  being  successor  to  another 223  25 

what  must  appear  from  the  transcript 223  27 

when  record  does  not  show  notice  of 224  28 

payment  of  costs,  condition  of 224  29-31 

certificate  of  justice 224  32 

undertaking  on 225  33 

undertaking  when  taken  by  the  county 225  34 

undertaking  when  taken  by  the  state 225  35 

undertaking  when  is  a  contract  on  the  part  of  sureties. . .  225  36 

undertaking  sureties  on,  need  not  appear  in  the  body  of.  .226  37 

undertaking  when  it  is  the  deed  of  both  sureties 226  38 

undertaking  when  statute  has  not  been  followed 226  39 

bond,  construction  of 226  41 

may  annul  bond. .« 226  42 

justice  may  stay  proceedings  227  43-51 

objection  to  appeal  bond  or  want  of  bond 227  44-45 

bond  conditioned  on  an  illegal  consideration 227  46 

a  mere  correction  of  judgment  does  not  create  liability 228  47 

justification  of  sureties  on  appeal  bond 228  48-49 


INDEX.  833 

APPEALS,  Continued.                                                                     PAGI:.  ascs. 

statutory  time  to  perfect  appeal 229  50 

form  of  notice  of  appeal  and  appeal  bond 230  52 

APPEAKANCE,  by  defendant,  notice  of 231  1 

what  is  an 232  2 

to  ask  an  adjournment  is  not 232  3 

failing  to  appear,  default  entered 232  5 

notice  of  appearance,  form  of 232  4 

entry  of  default,  form  of 232  6 

failure  of  all  the  defendants  to  appear 233  7 

failure  of  only  some  of  defendants 233  8-9 

failure  of  either  party  to  appear 233  10-11 

by  attorney 234  12-14 

AllKEST,  writ  of,  what  is 235  1 

order  to,  must  be  indorsed 235  2 

in  what  cases  it  may  issue 235  2-3 

in  cases  defendant  cannot  be  arrested 236  4-8 

affidavit,  must  make  sufficient  showing 237  9-13 

form  of  affidavit,  departing  from  the  state 238  14 

form  of  affidavit,  removing  property  from  the  state 239  15 

form  of  affidavit,  fraudulent  debtor 240  16 

form  of  undertaking  on  order  of 241  17 

form  of  approval .  i 241  18 

form  of  order  to  be  indorsed  on  summons 241  19 

upon  being  arrested  shall  be  taken  before  justice 242  20 

when  justice  is  a  material  witness 242  21 

officer  shall  give  notice  of  the  arrest  to  plaintiff 243 

form  of  affidavit 243  23 

form  of  certificate  to  be  indorsed  on  summons 243  24        , 

duty  of  officer  to  keep  the  defendant 243 

defendant  may  demand  a  trial 243  25  • 

may  demand  on  adjournment 244  25 

form  of  undertaking  by  defendant  on  arrest 244  26 

•    jury  being  called,  questions  of  fraud  must  be  submitted. .  .245  27 

facts  constituting  fraud  must  be  specifically  alleged 245  "    28 

execution  against  the    person    unlike  execution  against 

property 245 

facts  authorizing  arrest,  constitute  the  cause  of  action, . .  .246 
when  sureties  are  liable  on  defendant's  undertaking 246 

AEGUMENT  OF  COUNSEL 247 

ARBITRATION,  rules  of'. 247  1-3 

appointment  of 248 

proceedings  of 248 

duties  and  powers  of 24 

who  may  submit  controversy  to 249  7 

submission  of  cause  to  operate  a  discontinuance 251 

must  pass  upon  all  matters  submitted 252  ^       9 

an  agreement  of  submission,  must  be  that  award  become 

an  order  of  court 252  •„     10 

award  of 252  11-13 

105 


834  INDEX. 

• 

AKBITKATION,  Continued.  PAGE.  SE«S. 

form  of  agreement 253  14 

form  of  bond  to  abide  award 253  15 

form  of  notice  of  appointment 254  16 

form  of  notice  of  hearing • 254  17 

notice  of  revocation  of  powers 254  18 

notice  of  revocation  by  one  party 255  19 

form  of  oath  of 255  20 

ATTACHMENT,  remedy  by,  what  is  it 256  1-5 

may  issue,  in  what  actions 257  6-7 

upon  debts  not  due 258  8-11 

when  may  the  writ  issue — summons 258  12 

affidavit  that  debt  arises  on  contract 259  13 

security  by  mortgage  prevents  an  issuing 259  14 

pledge  of  personal  property  prevents 259  15 

duty  of  justice  in  issuing  writs 259  16-18 

the  affidavit 260  19-21 

forms  of  affidavits 261  22-23 

the  undertaking .262  24-25 

form  of  undertaking , 262  26 

the  bond  must  precede 262  27 

the  bond  must  not  exceed  the  jurisdiction  of  the  justice . .  262  28 

is  void  if  bond  is  executed  after  writ  has  been  levied 262  29 

rights  of  defendant  in  if  he  recover  judgment 264  30 

the  writ  of 264  31-33 

form  of  writ 264  34 

undertaking  on  release  of,  to  be  given  to  constable 265  35 

the  property  subject  to 266  36-41 

execution  of  the  writ 268  '  42 

how  real  property  is  to  be  attached 270  45 

when  it  operates  as  lien 270  45 

how  personal  property  is  attached : 271  47-54 

when  the  lien  takes  effect 272  55-59 

rule  in  contests  between  attaching  creditors 273  60-68 

garnishment,  statute 276  69 

garnishee's  liability 277  70 

garnishee  a  trustee 277  72 

what  he  must  answer 277  73 

promissory  note  before  due 277  74 

justice  may  render  judgment  against  garnishee,  for  what . .  277  75 

when  garnishee  disposes  of  property,  effect  of 277  76-78 

for,  of  garnishment 279  79 

examination  of  debtor  or  his  bailee 279  80 

court  may  order  property  delivered  to  sheriff 280  81-82 

the  garnishee  entitled  to  an  early  examination 281  83 

form  of  order  of  examination  of  defendant 281  84 

Xform  of  constable's  certificate  of  service 282  85 

for,  of  order  of  examination  of  debtor  of  defendant 282  86 

</  form  of  certificate  of  service 282  87 

constable  must  return  inventory  of  property  attached 283  88 


. 

INDEX.  835 

ATTACHMENT,  Continued.  PAO».         gic«. 

constable  shall  return  writ  with  summons 283  89 

mistake  in  return  may  be  corrected 283  90 

4/Tonns  of  return  of  writ 284      91-96 

duty  of  constable  with  respect  to  property  attached 286    97-102 

claims  by  third  persona 287  103-104 

constable  may  protect  himself  by  an  indemnity  bond 288          105 

form  of  an  indemnity  bond 289 

discharge  of,  after  levy 289 

undertaking  on  such  discharge. . . .' 290  110-114 

form  of  undertaking i . .  265  35 

discharge  of,  for  being  improperly  or  irregularly  issued. .  .294  116-119 

suits  against  plaintiff  in 295          120 

ACTIONS    TO    KECOVEE   POSSESSION    OF   PERSONAL 

PKOPEKTY,  replevin  when  it  lies 368          1-6 

demand  when  necessary 370        7-11 

demand  when  unnecessary 371      12-14 

pleadings  in 372      15-17 

judgment  in  actions  of 373      18-20 

return  of  property  after  judgment 381  34 

execution,  when  property  cannot  be-  taken  under 374  21 

damages,  measure  of 374 

delivery  of  property  before  answer 375 

affidavit  on  claim  of  delivery  of 375  24 

affidavit,  form  of • 376  25 

order  to  take  property 376 

order,  form  of 377  27 

order  and  affidavit,  duty  upon  receipt  of 377 

undertaking,  form  of 378 

undertaking,  suits  on . , 378      30-32 

undertaking,  effect  of 380 

return  of  property,  when  defendant  may  require 38! 

return  of,  form  of  undertaking  on  return  of  property 383 

sureties  on  undertaking  382 

sureties,  defendant's  exceptions  to 38 

sureties,  justification  of • 383 

certificate  of  justification  of 38 

property,  how  taken  and  kept 384 

claims  by  third  persons 38 

return  by  officer 385  42 

ATTOENEYS  AT  LAW,  authority  and  relations  as  to  the  courts. 295 

BILLS  OF  EXCHANGE,  PEOMISSOEY  NOTES,  ETC 

promissory  note — definition •• 297 

what  constitutes •' 297 

inland  bill  of  exchange,  its  principal  requisites ^.  .298 

checks  and  bills  of  exchange,  the  difference T. .  298 

certificate  of  deposit 2" 

bills  of  credit 2" 

note  beginning,  "I, ,  promise  to  pay  " 

value  received 29a 


836  INDEX. 

BILLS  OF  EXCHANGE,  ETC.,  Continued.                                PAGE.  SECS. 

negotiable  paper,  what  is 299      10-16 

consideration,  what  good 301  17-18 

fraud,  failure  or  illegality  of  consideration 301  19-20 

presumption,  consideration  valid 301  21 

fraud,  avoids 301  22 

guaranty,  what  is 302  23 

want  or  illegality  of  consideration 302  24 

possession  of,  evidence  of  ownership 303  26 

agreement  to  extend  payment  of .-. 303  26 

the  effect  of  fraud  as  to  a  portion  of  the  consideration ....  304  27 

consideration  may  be  required  with,  at  any  time 304  28 

notes  deposited  as  collateral  security 304  29-32 

interest,  when  it  begins  to  run 305  33 

when  the  receipt  of,  is  payment  of  a  debt 305  34-39 

alteration  of 309  40 

when  a  blank  is  left,  to  be  filled  up 309  41 

rate  of  interest  left  blank  to  be  filled  up 309  42 

payment  of .309  43-47 

when  note  or  draft  is  payable 311  48-50 

place  of  payment % 311  51-52 

when  check  must  be  presented 312  53 

de'mand  on  maker 313  54 

must  not  be  presented  at  a  late  hour 313  55-57 

demand  should  be  made  on  third  day  of  grace 314  58 

•  note  payable  on  demand,  a  suit  is  sufficient  demand1 314  59 

sight  notes 314  59 

notes  payable  in  installments 315  61 

indorser,  his  contract 315  62* 

indorsor  entitled  to  notice 315  63 

indorser  must  have  a  clear  title  or  his  indorsement  is  void.  315  64-65 

indorser  when  charged  and  not 316  66-71 

notice  to  indorser,  when  to  be  given 317  72-78 

notice,  how  served 319  79-80 

notice,  manner  of 320  81-84 

form  of  notice  of  demand  and  non-payment. 322  86 

form  of  notice  of  protest  for  non-payment 322  87 

form  of  notice  of  protest  for  non-acceptance 323  87 

acceptor  of  bill 323  88-95 

protest  of  notary,  what  it  should  contain 325  96-101 

waiver  of  presentment  and  notice,  how  proved 328  102-104 

damages  on  foreign  bills , .  329  105 

guarantor,  who  is 330  106-107 

his  liability,  how  fixed 330  108 

in  consideration  of  time 330  109-110 

when  indorser  is  a  guarantor 331  111-112 

guarantors  entitled  to  notice 333  113 

sureties , 334  114-116 

surety,  when  released 337  117 

surety  against  maker 337  118 


INDEX.  837 

BILLS  OF  EXCHANGE,  ETC.,  Continued.  PiCE.          8ECS. 

when  and  by  whcm  suit  can  be  brought  on  note 338  119-127 

past  notes  or  checks  or  negotiable  paper 340          128 

in  case  of  loss  or  destruction 340  128-130 

assignment  of,  before  maturity 340  131-133 

assignment  of,  after  maturity 341  134-139 

defense  by  maker  against  «signee 344          140 

execution  of,  how  proved 344 

execution  signed  with  an  X  or  mark 344 

attesting  witness  not  indispensable 344 

agents,  executed  by .345 

when  principal  is  bound 346 

agent  signing  his  own  name  to  a  promissory  note 347 

corporations,  executed  by 348  147-148 

infants,  executed  by 348          149 

partners,  executed  by 348  150-152 

guardians,  trustees,  executed  by 349          153 

wife,  executed  by 350  154-156 

forms 351  157_165 

checks,  rules  in  regard  to 352          164 

CALLING  OF  CAUSE,  how  long  justice  should  wait 354  1 

when  he  may  proceed 354  2 

when  a  particular  hour  is  fixed 355  3 

CEKTIORAKI,  is  the  remedy  when 355  i 

return  to  writ  of 355          2-4 

errors  in  the  exercise  of  jurisdiction 227-373      43-20 

CHATTEL  MORTGAGES,  the  subject  of 356  "l 

how  and  when  executed 357          2-5 

redemption,  the  right  of 358        6-18 

effect  of 359        7-17 

form  of ....... 361  19 

CONTRACTS  IN  GENERAL,  of  which  justices  have  jurisdiction  36  1 

classification 37  2 

judgment  of  court 37  3 

consideration 38  4 

past  consideration 38  5 

writing  under  seal 38          6-8 

writing  not  under  seal 38  7 

kinds  of  consideration 39  9 

express  or  implied 39  10 

who  may  make 40      11-15 

against  public  policy ••".... 41  16 

an  unlawful  act  already  done 42  17 

in  restraint  of  marriage  or  trade 42  18 

imprisonment  or  duress 42  19 

ESTATES  OF  DECEASED  PERSONS,  claims  against 362  1 

claims,  meaning  of 362        2-12 

claims  presented  before  publication  of  notice  363  3 

claims,  when  must  be  presented 363          5-6 

claims  must  be  sustained  by  affidavit 364          6-7 


838  INDEX. 

ESTATES  OF  DECEASED  PEKSONS,  Continued.                   PAGE.  BEC3. 
claims  when  not  due  at  the  time  of  the  first  publication  of 

notice 364  8 

claims  rejected  by  executor  or  administrator 365  9 

claims  barred  by  statute  of  limitation 365  10-11 

claims  when  executor  or  administrator  is  willing  to  allow 

part  of 366  18 

creditor  who  is 363  4 

judgment,  when  recovered 366  13 

judgment  against  administrator  or  executor 366  14-15 

judgment  against  deceased  in  his  life-time JJ67  20 

action  pending  against  testator  or  intestate 366  16- 

CONTEMPTS,  justice  may  punish  for 385  1-2 

justice  may  issue  a  warrant  for  abusive  words 386  3 

justice,  his  order  must  be  lawful ,  386  4 

for  resistance  or  disobedience 386  5 

courts  are  exclusive  judges  of  their  contempts 386  7 

commitment  for  contempt 386  6 

when  committed  in  the  presence  of  the  court 386  8-12 

general  power  of,  in  cases  of 387  9-11 

warrant  of  arrest,  form  of -. 387  12 

COSTS,  an  incident  to  the  judgment 388  1-2 

affidavit  accompanying  bill  of 388  3 

amendment  of  bill  of 388  4 

case  must  be  determined 388  5 

attorney  has  no  lien  for  his  fees 388  6 

upon  appeal 388  7 

CKIMINAL  PEACTICE,  General  Definitions  and  Provisions. .  .771  1-10 

limiting  counsel  in  argument 772  11 

confession  in  evidence 772  12 

cannot  be  subject  to  a  second  prosecution 772  13-16 

cannot  be  made  to  testify  against  himself 773  17 

must  be  convicted  by  a  jury 773  18 

Of  the  Prevention  of  JPublic  Offense 773 

lawful  resistance 773  19-23 

Of  the  Intervention  of  the  Officers  of  Justice 774  24 

Security  to  Keep  the  Peace "...  774  25-40 

form  of  complaint  to  obtain  surety  of  peace 776  41 

form  of  wan-ant  of  arrest 776  42 

return  of  sheriff  or  constable  to  'be  indorsed  on  warrant . . .  777  43 

admitting  accused  to  bail 777  44 

form  of  order  of  discharge 777  45 

form  of  peace  bond '. 778  46 

form  of  commitment 778  47 

Police  in  Cities  and  Towns,   their  attendance   at  exposed 

places 779  48-49 

Suppression  of  Kiots 779  50-60 

Of  the  Removal  of  Civil  Omcers,$>therwise  than  by  impeach 
ment  -. 780  '  61-73 

Of  the  Proceedings  in  Criminal  Actions,  prosecuted  by  in 
dictment  . . .                                                                   .  .  781  74-85 


INDEX.  839 

CRIMINAL  PRACTICE,  Continued.  PAGE. 

Of  the  Time  of  Commencing  Criminal  Actions 783      86-91 

Of  the  Complaint,  and  the  Officers  Authorized  to  hear  it 784      92-94 

Warrant  of  Arrest 784  95 

presumption  in  favor  of  jurisdiction  of  justice 784 '          96 

depositions  taken  before  a  committing  magistrate  may  be 

used  before  a  grand  jury j.  .784  97 

depositions  not  admissible  on  his  trial 784  98 

what  depositions  must  set  forth 784  99 

what  affidavit  must  contain 784          100 

charge  according  to  best  knowledge  and  belief 785  101-102 

justice  must  be  satisfied  that  an  offense  has  been  com 
mitted 785  103-105 

form  of  warrant  of  arrest 786  106-107 

every  justice  of  the  peace*  is  a  committing  magistrate 786          108 

what  warrant  must  specify 787          109 

to  whom  directed 787  110-114 

when  the  offense  charged  is  a  felony 787          115 

when  a  misdemeanor 787          116 

admission  to  bail  must  be  certified  on  the  warrant 787          117 

duty  of  constable  when  bail  is  not  given 787  118-119 

must  be  taken  before  a  magistrate  without  delay  788          120 

when  taken  before  a  magistrate  who  did  not  issue  the  war 
rant 788          121 

when  complaint  is  laid  before  a  justice  of  an  offense  triable 

in  another  county 788  122-123 

Arrest,  by  an  officer  under  warrant 788  125-134 

by  an  officer  without  a  warrant 789  135-140 

by  a  private  person 790  141-144 

retaking  after  an  escape  or  rescue 790  145-146 

examination  of  the  case  and  discharge  of  the  defendant,  or 

holding  him  to  answer 790  147-167 

where  a  crime  different  from  that  charged  in  the  affidavit 

appears  to  have  been  committed 793          168 

if  the  offense  be  not  bailable,  the  words  to  be  used 793          169 

if  the  offense  be  bailable,  the  words  to  be  used 793  170-171 

commitment,  form  of 793          173 

commitment,  explanation  of 793  174-175 

recognizance  of  witnesses 795  176-180 

when  magistrate  discharges  defendant 795 

Of  Proceedings  after  Commitment  and  before  Indictment. .  .796  183-185 

Powers  and  Duties  of  a  Grand  Jury *. .  .796  18&-189 

Presentment  and  Proceedings  Thereon 797  190-196 

•    Form  of  Indictment 798  197-200 

Challenging  the  Jury 7^8  201-226 

defendant  may  question  jurors  as  to  whether  they  have 

formed  an  opinion 801          227 

implied  bias -....* 801          228 

actual  bias 801 

how  to  ascertain  the  existence  of  bias 801          230 


840  INDEX. 

CKIMINAL  PKACTICE,  Continued.  PAGE.         SEOS. 

an  unqualified  opinion 80F         231 

competency  of  juror 801  232-233 

exemption  from  service  as  a  juror  no  cause  for  challenge . .  801          234 

bias  generally - 801          235 

adverse  party  may  except  to  challenge 801          236 

trial  of  challenge 802  237-344 

Appeals,  When  Allowed  and  How  Taken '. 802  245-253 

form  of  notice  of  appeal *. 803          254 

appeal  from  order  to  deliver  stolen  property 804          255 

appeal  when  perfected 804  256-259 

appeal  when  crime  is  less  than  a  felony 804          260 

statement  on  appeal  in  criminal  cases 804  261-262 

appeal  from  the  police  court  of  San  Francisco 804          262 

when  judgment  is  reversed 805          263 

judgment  of  affirmance 805          264 

remittitur 805          265 

In  What  Cases  Defendant  may  be  Admitted  to  Bail 805  266-273 

Bail  upon  being  Held  to  Answer  before  Indictment 807  275-280 

Bail  upon  Indictment  before  Conviction 808  2,81-284 

Bail  upon  Appeal 809  285-288 

Deposit  Instead  of  Bail 810  289-291 

Surrender  of  the  Defendant 8\0  292-295 

Forfeiture  of  Recognizance  or  of  the  Deposit  of  money... . .  .811  296-299 

Recommitment  of  the  Defendant  after  having  given  Bail. .  .811  300-306 

Compelling  the  Attendance  of  Witness : 813  307-317 

Insanity  of  Defendant 814          318 

Entitling  Affidavits 814          319 

Errors  and  Mistakes  in  Pleadings  and  Other  Proceedings. .  .814  320-325 

Disposal  of  Property  Stolen  or  Embezzled 815  326-331 

Proceedings,  in  Justices',  Mayors'  and  Recorders'  Courts.  .  »816 

must  be  commenced  by  complaint 816          332 

object  of  pleading ' 816          333 

must  state  facts 816          334 

when  complaint  is  made,  must  examine  complainant  <jn 

oath 816          335 

when  justice  must  issue  warrant 816          336 

form  of  warrant  of  Jirrest 816          336 

defendant  may  plead,  answer  or  deny  complaint 817          337 

continuance 817  338-339 

must  be  personally  present 818 

docket,  wliat  it  shall  contain 818 

what  record  must  show 818 

defendant  entitled  to  a  jury  trial 818          3t> 

challenges  of  j\irors 818          344 

court  shall  administer  oath 818  345-346 

jury  separating,  effect  of s 818          347 

court  shall  decide  all  questions  of  law .' 819  348-351 

jury,  after  hearing  proofs  and  allegations,  may  decide. . .  .819          352 
verdict  shall  be  general 819          353 


INDEX. 

CRIMINAL  PRACTICE,  Continued.  PAGK.          itci. 

verdict  must  be  delivered  publicly 819          354 

when  several  defendants  are  tried  together. 819          355 

the  jury  shall  not  be  discharged  except  for  good  cause 820          356 

when  discharged  a  new  trial  shall  be  had 820          357 

when  defendant  pleads  guilty 820          358 

judgment 820          359 

when  defendant  is  acquitted 820          360 

prosecutor  may  be  made  to  pay  costs  of  prosecution 820          360 

judgment  against  prosecutor,  how  enforced 820          361 

verdict  must  be  immediately  entered 820          362 

after  verdict  court  shall  deliver  sentence  in  not  more  than 

two  days  or  less  than  six  hours 820          363 

may  move  for  a  new  trial  before  sentence 820          364 

when  new  trial  shall  be  granted 820  365-366 

motion  in  arrest  of  judgment,  on  what  founded  and  its 

effect 821  367-368 

judgment  of  acquittal 821          369 

judgment  of  imprisonment .821          370 

judgment  imposing  fine 821  371-373 

when  fine  is  paid  defendant  shall  be  discharged 821          374 

application  of  fine 831          375 

when  defendant  is  discharged  on  bail  and  fails 821          376 

in  case  of  failure  to  appear  for  judgment 822          377 

Search  Warrants 822  378-400 

Proceedings  against  Fugitives  from  Justice. 824  401^10 

Compromising  Offenses  by  Leave  of  the  Court 826  411-414 

fine,  application  of 82ti  415-417 

Miscellaneous  Provisions 827  418-423 

Costs  in  Criminal  Actions  and  Proceedings 827  424-432 

Supplemental  Acts ' 827  433-436 

DAMAGES,  amount  of,  question  of  fact 389  1 

rule  in  regard  to 389  2 

contemplated  and  contingent  profits  not  allowable 389  3 

in  case  of  negligence  simply . . .  f. 389  4 

when  property  converted  has  a  fixed  value , 389  6 

jury  must  find  damages 389  6 

in  actions  for  personal  torts 389  7 

for  cutting  down  growing  trees 390  8 

for  loss  of  time 390  9 

for  collision 390  10 

for  failure  to  deliver  goods 390  11 

when  damages  should  be  nominal 1 391  12 

rule  when  goods  are  not  delivered  according  to  contract.  391      13-14 

against  common  carriers 391      15-17 

for  nuisance 392  18 

against  sheriffs  for  wrongful  seizure 392  19 

DEPOSITIONS,  who  may  take 395  1 

of  a  party  to  an  action 395  2 

statute  in  regard  to,  must  be  complied  with 395  3 

106 


842  INDEX. 

DEPOSITIONS,  Continued.                                                          PAGE.  SECS. 

mode  of  taking,  pointed  out  by  statute 395  4 

the  suppression  of  the  reading  of 396  5 

interpretation  of 396  6 

either  party  may  take '. 396  7-9 

notice  to  take  depositions • 396  10-18 

certificate  to . .  i 399  19"-22 

objections  to .». 399  23 

when  made 399  23-24 

when  waived 400  25 

exceptions  to,  generally 400  26-29 

DEPUTATION,  blanks  to  be  filled 393  1 

order  of  justice  to  fill  blank  or  change  or  alter  dates 393  2-3 

in  case  of  sickness • 393  4 

general  powers  to  deputize 393  5-13 

EXECUTION,  when  it  shall  'issue 457  1-2 

what  to  contain 457  2 

to  whom  directed 457  4 

in  what  manner  served 458  5-9 

property  exempt  from 459  10 

household  furniture 461  11-13 

horses  exempt 462  14-30 

homestead .462  15-20 

life  insurance 463  21 

property  hypothecated 463  22 

franchise 463  23-25 

separate  property  of  wife  for  husband's  debts 464  26-27 

separate  property  of  husband  for  wife's  debts 465  28 

service,  manner  of 466  31-32 

property  in  the  custody  of  the  law 465  29 

levy,  how  made 4G6  33-41 

sale  under,  notice  of 468  42-48 

certificate  of  sale 470  49-51 

purchaser  refusing  to  pay 471  52-53 

redemption  of  property  sold. . .« 472  54-59 

purchaser  evicted  may  recover  price  of 475  60 

deed  of  property  sold  by  sheriff. 476  61-62 

FENCES 476  1-11 

FERRIES  AND  TOLL  BRIDGES 481  1-3 

FORMER  RECOVERY 482  1-10 

FRAUD,  definition  of 485  1 

conveyances,  leases 485  2-4 

trusts,  void  for 486  5-7 

agreements  not  in  writing 486  8-15 

contracts  for  sale  of  goods 488  16-i9 

immediate  delivery  and  continued  possession 489  20-21 

rule  under  our  statute 490  22 

delivery  of  hay 490  23 

must  be  actual „ 491  24-27 

must  be  immediate. .                                                              .  .491  25 


INDEX. 


843 


FRAUD,  Continued.                                                                          PAGE.  Bcc». 

growing  crops 491  26 

delivery  of  property  in  the  possession  of  a  bailee 491  28 

possession  of  mortgages 492  29-31 

hinder  and  delay  creditors 493  32-34 

intent 494  35-36 

landsrfind  conveyances 494  37 

as  between  parties 495  38-40 

proof  of 495  41-43 

GOODS,  confusion  of  496  1-4 

INJURIES  TO  PERSON  AND  CHARACTER 497  1-2 

INJURY  TO  PERSONAL  PROPERTY,  how  divided 497  1 

general  rule 497  2 

ordinary  care 498  3-11 

INJURIES  TO  THE  PERSON 

civil  action  for  damages  for  the  death  of  a  person 500  1 

passenger  of  a  stage  coach 501 

rule  of  law  as  between  master  and  servant -. . .  .501 

•    master  not  responsible  when  he  has  no  right  to  choose  his 

agent 503  9 

rule  as  to  injuries  by  the  construction  of  buildings 503  10-11 

when  contractors  are  liable 504 

county  not  liable 404  13 

intoxication  no  excuse  for 504  14 

vindictive  damages,  when  given 505  15 

when  action  cannot  be  maintained 505 

INSOLVENT,  when  discharged  from  his  debts 505  1 

jurisdiction  in  cases  of 505  2 

discharge  under,  when  a  bar  to  actions  for  debt 505 

joint  application  of  partners  void 505  4 

an  assignment  to  creditors 506  5 

preference  by. 506  6 

meeting  of  creditors 506  7 

property  of,  transferred  to  the  court 506  8 

when  fraud  is  charged.  .• 507  9 

an  insolvent's  discharge 507  10 

when  insolvent  has  had  benefit  of  the  act 507  11 

concealment  of  his  property 507  12 

after  assignment,  property  vests  in  assignee 508  13 

subsequent  promise  will  make  him  liable 508  14 

INTEREST,  what  is 508  1 

when  a  larger  per  cent,  than  legal  interest  is  allowed 509  •       2 

allowed  by  way  of  damages 509 

act  to  regulate  interest 509  4 

follows  contract 509  5 

who  liable  for 510  6-7 

when  recoverable 510 

amount  for  which  judgment  should  be  rendered 510  10-11 

computation  of 511  12-13 

IN  STRUCTIONS,  what  is  an  instruction 511 

what  it  should  be 512  2 


844  INDEX. 

INSTRUCTIONS,  Continued.                                                        PAGE.  8ECS. 

must  not  be  given  as  to  matters  of  fact 512  3 

must  be  in  regard  to  the  law 512  4 

should  conform  to  the  pleadings 512  5 

must  be  adapted  to  the  facts. ...    512  6 

article  6,  sec.  7  of  constitution  alluded  to 512  7-8 

erroneous  when '. .513  9-10 

where  answer  is  insufficient 513  11 

when  allegations  are  admitted 513  12 

where  evidence  is  insufficient ...  513  13 

conflicting 513  14 

on  abstract  questions  of  law 513  15 

court  should  give  or  refuse 514  16-18 

may  read  from  memoranda 514  19 

when  reason  of  refusal  should  be  stated 514  20 

when  the  same  has  been  given 514  21 

after  jury  have  retired 514  22 

in  justice's  court 514  23-27 

JUDGMENT,  definition  of - 515  1-4 

is  property 516  5 

when  valid 516  6-12 

by  default 517  13-22 

how  and  when  to  be  rendered 518  23-26 

on  joint  and  several  contracts. 518  27-29 

specific  contracts . 519  30-31 

when  claim  exceeds  jurisdiction 519  32-35 

in  cases  of  arrest 520  36 

in  replevin 520  37 

offer  to  allow 520  38 

by  confession 521  39-40 

form  of 521  41 

must  be  signed  by  each 522  43-44 

cost  taxed 523  45-46 

interest  on 523  47-48 

lien  by  justice's  judgment 523  49 

JUSTICES  OF  THE  PEACE,  election,  qualification  and  term  of 

office 17  1 

distribution  of  judicial  powers 17  2 

number  of,  determined  by  the  legislature 17  3 

number  to  be  elected 17  4 

by  whom  elected 17  5 

in  incorporated  cities  and  towns 17  6 

when  to  be  elected 18  7 

in  case  of  the  formation  of  new  township 18  8-9 

must  receive  certificates  of  election 18  10 

must  be  commissioned 18  11 

by  what  authority 19  12 

acting  as  such,  proof  of  authority  to  act 19  13-18 

oath  of  office 19  14 

before  whom  taken ..                                                            ..19  15 


INDEX.  845 

JUSTICES  OF  THE  PEACE,  Cyntlmaid.                                    PAGE.  8ECS. 

nnist  subscribe  oath 19  16 

must  execute  bond . .  19  17 

form  of  bond .19  17 

when  office  of,  shall  become  vacant 19  19 

what  creates  a  forfeiture  of 21  21 

indicted  for  drunkenness  and  found  guilty 21  22 

mal-administration . .  21  23 

removal  from  county 21  24 

temporary  removal  of ; 21  25-26 

where  a  justice  forfeits  his  office  by  accepting  another 22  27 

when  he  is  justice  de  facto 2'2  28 

what  is  of  itself  a  surrender 22  29 

JUKISDICTION  OF  JUSTICES,  general  rale  as  to 22  1 

amount  in  controversy s 23  2 

judgment  beyond  jurisdiction 23  3 

jurisdiction  statutory 23  4 

when  first  court  show  jurisdiction 23  5 

when  balance  of  account  is  within 23  6-21 

objections  to,  how  taken  advantage  of ' 27  20-21 

nature  of  actions  of  which  justices  have  jurisdiction 28  22-32 

to  what  actions  jurisdiction  shall  not  extend 31  33 

injuries  to  mining  claims 31  34 

injuries  to  personal  property 32  34 

injury  for  diversion  of  water 32  34 

of  action  involving  title  to  real  estate 32  35-49 

LANDLORD  AND  TENANT,  relation  of 524  1-4 

eviction  of  tenant 525  5-7 

rents,  payment  of 525  8-12 

tenant  entitled  to  fixtures,  rule  of  law  concerning 526  13-18 

time  for  exercising  right  to  recover  fixtures 528  19-20 

assignor  of  leasehold  estate 528  21 

executors  of  assignees 529  22-23 

conventional  landlord  can  alone  remove  tenant 529  24 

demand  of  tenant  before  action 529  25 

when  action  for  unlawful  detainer  lies. 529  26-30 

tenancy  terminating  by  eviction 530  31 

form  of  lease 530  32 

LIENS  OF  MECHANICS  AND  OTHERS : 532 

mechanics' 532  1-6 

stablemen  and  ranchmen 542  7 

possession  of  goods  necessary 542  8 

master  of  a  ship 543  9 

inn-keepers 543  10 

carriers 544  11 

vendors  of  real  estate 544  13 

LIMITATIONS,  STATUTE  OF 545 

statute 545  1 

decisions  respecting 546  5-18 

LIQUIDATION  OF  DAMAGES 550  1-5 


846  INDEX. 

PAGE.  1ECS. 

MANNER  OF  COMMENCING  ACTIONS' 553 

how  actions  shall  be  commenced 553  1-7 

how  guardians  appointed 553  8-9 

'  form  of  application  of  infant  plaintiff  for  guardian 555  10 

form  of  application  of  relation  for  infant 555  11 

form  or  consent  of  guardian  of 556  12 

form  of  nomination  of  guardian  by  infant  defendant  over 

fourteen  years .' 556  13 

MINES  AND  MINING  CLAIMS 557 

legislation  on  the  subject  of  mines 557  1-3 

custom  and  usage 561  4-8 

use  of  water . .  562  9 

extent  of  right,  or  claim  of 563  10-12 

of  work  done  on  a  claim 564  13-19 

entry  on  private  lands 567  20-23 

how  acquired  and  held 570  24-29 

capacity  of  tenants  in  common  to  hold  under  a  company 

name ". 572  30 

right  to  give  away  'a  mining  claim 572  31 

how  conveyed  or  transferred 573  32-42 

how  lost 575  43 

abandonment 575  44-50 

when  forfeiture  takes  place 576  51-54 

partition  of 577  55 

mining  partnership 577  56-58 

injury  or  trespass  to 579  59-62 

actions  to  secure  possession  of 582  63 

statute  of  limitations 583  64 

foreign  miners 583  65 

act  to  regulate  the  rights  of  the  owners  of  mines 583  66 

MOETGAGE  PLEDGE,  pledges  generally 587  1-2 

pledge  and  chattel  mortgage,  distinction  between 587  3-9 

chattel  mortgages,  statute  concerning 590  10 

form  of  chattel  mortgage 591  11 

mortgage  of  real  estate 592  12-14 

form  of i .  593  15 

NEW  TEIALS,  new  trial  defined 594  1-3 

surprise  as  a  ground  for  a  new  trial 595  4-8 

unpreparedness. 596  9-10 

excessive  damages . . . , 596  11-12 

verdict  not  sustained  by  evidence 597  13 

conflicting  evidence 597  14-16 

newly  discovered  evidence 597.  17-25 

improperly  admitted  evidence 599  26-29 

evidence  given  by  mistake 600  30-31 

disqualification  of  juror 601  32 

when  defendant  is  not  liable 601  33 

the  motion  for ! ' 601  34-35 

affidavit  on  motion  for. .                                                       ..601  36-39 


INDEX. 


84:7 


Xi:\V  TEIALS,  Continued.                                                              PAGE.  SEC3. 

notice  of  motion  for G02  40-41 

statement  on  motion  for. . . : 602  42-43 

court  may  impose  terms 603  «44 

rules  to  be  observed  on  application  for 603  45-51 

effect  of  granting  new  trial ; 604  52 

NONSUIT,  statute : 604  1 

is  a  question  of  law 605  2 

when  it  shall  be  granted 605  3-8 

motion  for,  should  state  ground 606  9 

NUISANCES,  what  is  a  nuisance 606  1-8 

jurisdiction  of ; ..  608  9 

OFFICERS • 609  1-7 

SET-OFF,  OE  COUNTER  CLAIM,  what  is 610  1 

statute  concerning 610  2-6 

effect  of :611  7 

where  it  can  and  cannot  be  pleaded 612  8-14 

judgment  may  be  set-off. 613  15-20 

PARTIES  TO  ACTIONS,  by  what  names  parties  to  be  styled. . .615  1 

the  state 615  2 

counties 615  3-6 

in  whose  names  actions  to  be  prosecuted 616  7-17 

executors,  administrators  and  trustees 618  18-j20 

husband  and  wife 618  21-30 

infants 620  31-34 

persons  in  interest 621  35-46 

persons  severally  liable  on  same  instrument 623  47-49 

death,  or  disability  of  party  or  transfer  of  interest 623  50-52 

PARENT  AND  CHILD,  infancy,  its  termination 624  1-2 

capacities  and  incapacities 624  3-5 

of  parents 625  6-13 

PAYMENT,  what  is 627  1-7 

by  mistake  of  law 629  8-13 

under  protest 629  14-16 

PERSONAL  LIABILITY  OF  OFFICERS,  of  justices 630 '  1-3 

of  constables 681  4-8 

PLEADINGS,  definition  and  object 632  1-2 

rules  of 633-637  3 

construction  of 637  4 

form  of  action  and  pleading 637  5 

the  complaint,  what  it  is 637  6 

complaint  by  administrators  et  al 637  7 

complaint  against  administrators  et  al 638  8 

complaint  in  actions  of  account 638  9 

answers 638  10 

pleas  of  new  matter,  payment,  statute  of  limitation 639  11 

separate  defense 639  12 

demurrers 639  13 

striking  out  pleadings 640 

amendment  of 640 


848 


INDEX. 


PLEADINGS,  Continued.                                                               PAGE.  6Ecg. 

allegations  and  proof  must  correspond .  . .  k ; , . .  640  16 

verification  of  pleading i  »>«%•«•«»«•  M  640  17 

in  justices'  courts  generally 640  18-23 

construction  of , 642-645  24-25 

rules  of  pleading  in  justices'  court 642  26 

pleadings  in  justices'  courts 642  27 

complaint  in < > 642  28-46 

answer  in 645  47-54 

k    demurrer  in 646  55-60 

when  pleadings  in,  are  to  be  in  writing  and  verified 646  61-62 

verification  of  pleadings  in : . 647  63 

form  of  verification  by  party  to 648  64 

form  of  verification  by  other  person :  648  65 

what  justice  shall  do  with  pleadings '.  648  66 

amendments  of  pleadings 649  67-71 

evidence  under  the  pleadings 650  72-76 

EELEASE 050  1-2 

SUMMONS,  the  jurisdiction  given  by 651  1 

contents  of 651  2-6 

time  in  which  summons  must,  defendant  io  appear 652  7-8 

blanks  to  be  filled  by  justice  only 653  9-10 

amendment  of  summons .653  11 

form  of 654  12 

SERVICE  OF  SUMMONS,  when  not  necessary 655  1-2 

acknowledgment  of 656  3 

by  whom  to  be  served 656  4 

form  of  affidavit  for  deputation  of  person  to  serve 657  5 

form  of  request  to  depute 657  6 

form  of  deputation  to  be  indorsed  on  summons 658  7 

mode  of  service  on  corporations 658  8-10 

against  minors 659  11-12 

against  insane  persons 659  13 

in  all  other  cases 659  14 

return  of  service  of  summons 659  15-17 

form  of  return  on  corporation 660  18 

form  of  return,  minor  under  the  age  of  fourteen 660  19 

form  of  return,  insane  person. 661  '       20 

form  of  r"eturn  in  all  other  cases 661  21 

form  of  return  when  defendant  cannot  be  found 661  22 

mode  of  service  when  defendant  is  out  of  the  state .661  23-25 

form  of  affidavit  for  publication  of  summons 663  26 

form  of  order  for  publication  of  summons 664  27 

form  of  affidavit  of  publication  of 665  28 

SHERIFFS  AND  CONSTABLES 666 

statutes  creating  the  office  and  defining  the  duties  of 666  1-2 

the  office  of 678  3-8 

duties  generally 679  9-25 

diligence  of ,  :681  26-30 

responsibility  for  deputy 682  31-36 


INDEX. 


849 


PACK. 

..683 


SECS. 

37-56 
57-73 
74-87 
88-89 
90-92 
93-99 


SHERIFFS  AND  CONSTABLES,  Continued. 

seizure  of  property,  levy 

sheriffs,  levy  by  himself  or  deputy 686 

indemnity 689 

keeping  goods 691 

conflicting  claims 691 

writs  of  restitution 692 

sale  by 694  100-J23 

damages  recoverable  of 697  124-128 

forms  in  criminal  cases Nos.  1-15 

forms  in  civil  cases 

forms  by  constable 

STOPPAGE  IN  TRANSITU 707 

SUNDAYS * 708 

SURETIES,  surety  by  undertaking 709 

allowance  of  undertaking 710 

justification  of : * 71° 

qualification  of 71 

TENDER j 71° 

TIME 713 

TRANSFER  OF  ACTIONS,  to  district  court 

to  other  justice 7* 

affidavit  for  transfer 716 

form  of  affidavit 716 

717 
form  of  notice ' Al 

TRL  jPASS 717 

7  on 
TRIAL,  generally JJJ 

in  what  townships  or  cities  actions  to  be  brought 721 

7QQ 

right  of  trial  by  jury '*? 

when  a  jury  shall  be  deemed  waived 723 

724 
writ  of  venue •  •  • 

excepted  counties,  venue  in  civil  or  criminal  actions.. 7 

jury  shall  be  summoned  from  the  citizens  of  township. 

qualification  of  jurors 

peremptory  challenges 

challenge  for  cause 

duty  and  power  of  jury 

duty  of  jury  in  the  trial  of  civil  cases 

polling  the  jury 

TROVER  AND  CONVERSION •••••.- ''  jj* 

TRUSTS 

UNDERTAKING  ON  BONDS,  generally £jjj 

consideration : ' ' ' 

what  is  joint  and  several • ^^ 

liabilities  of  sureties " 

alterations  and  erasures 

administrator's  bond 

injunction  bonds "  ,1" ' 

USE  A  \D  OCCUPATION ^         JJ 

v:.  E 


.725 
.727 
.729 
.729 
.730 
.731 
.732 


.736 
.737 
.737 
.737 


1-2 

4 
5 

1-8 

1-4 

1-2 

3 

4 

5 

6 

1-3 

5-12 

13-15 

16-17 

18 

19 

20-22 
23-25 
26-27 
28-30 
31 

32-39 

40 

1-5 

1-3 

1-2 

3-4 

5-6 

7-9 

10 

11 


850 


INDEX. 


PAGE.  SECS. 

VARIANCE 740  1-7 

WARRANTY,  in  general , .  .741  1-5 

rules ;...... 742  6-7 

WATER  RIGHTS,  preferred  uses  of  water 743  1-4 

nature  of  rights  to  water 745  5-7 

rights  to  water  by  riparian  ownership 745  8-9 

what  is  an  appropriation  of  water 746  10-11 

rights  by  appropriation  of 746  12-26 

rights  to  use  of,  in  public  mineral  lands 749  27 

test  of  priority  in  claims  to 750  28-29 

mingling  of  water  by  different  appropriators 751  30-31 

actions  for  wrongful  diversion  of . . . 752  32-33 

injured  by  water 752  34-39 

WITNESSES 754  1-12 

Fees  of  Justices  and  Constables. . .  , .  .756  1-8 


M 


